SHRI KAILASH VIJAYVARGIYA Vs. ANTAR SINGH DARBAR AND ORS

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 8232-8234 of 2017, Judgment Date: Jan 12, 2017

                                                         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NOS............./2017
                  (@ Special Leave Petition Nos. 8232-8234/2016)


SHRI KAILASH VIJAYVARGIYA                                       APPELLANT(S)

                                VERSUS

ANTAR SINGH DARBAR AND ORS.                                    RESPONDENT(S)

                               J U D G M E N T
      KURIAN J.
      1.   Leave granted.
      2.  The appellant is aggrieved by the  directions  issued  by  learned
Single Judge to initiate an inquiry under section  340  of  Cr.  P.C.  which
reads as follows:
      “After going through the averments made in  the  application  and  the
reply to the application, I find that admittedly,  there  is  a  mistake  in
description of respondent No. 1 and also respondent No.  1  did  not  appear
before the notary public to sign the register. Counsel  for  the  petitioner
further submits that  signatures  on  the  affidavit  are  also  forged,  as
respondent was not available in the State of MP at the relevant time.
            Looking to the  allegations  made  in  the  application,  it  is
apparent that brief enquiry is necessary  as  provided  by  section  195  of
Cr.P.C., therefore, this application is disposed of with the direction  that
office should separate the application, reply thereof and the  affidavit  in
question from the record of this election petition by placing  photocopy  of
the same in the record and register a separate  MCC  for  conduct  of  brief
enquiry. The original affidavit should be  kept  in  a  sealed  envelop  and
placed in custody of Principal Registrar of this Court.”

      3.  We are  afraid,  there  is  no  satisfaction  as  warranted  under
section 340 of Cr.P.C. to initiate a preliminary inquiry. This  court  in  a
recent judgment in the case of Amarsang Nathaji as Himself and as Karta  and
Manager Vs. Hardik Harshadbhai Patel and others, (2017) 1 SCC 113 has  dealt
with this aspect in detail.


“6.   The mere fact that a person has made a contradictory  statement  in  a
judicial proceeding  is  not  by  itself  always  sufficient  to  justify  a
prosecution under Sections 199 and 200 of  the  Indian  Penal  Code  (45  of
1860) (hereinafter referred to as “the IPC”); but it must be shown that  the
defendant has intentionally given a false statement  at  any  stage  of  the
judicial proceedings or fabricated false evidence for the purpose  of  using
the same at any stage of the judicial  proceedings.  Even  after  the  above
position has emerged also, still the court has to form an  opinion  that  it
is expedient in the interests of justice to initiate  an  inquiry  into  the
offences of false evidence and offences  against  public  justice  and  more
specifically referred in Section 340(1) of the CrPC, having  regard  to  the
overall factual matrix as well  as  the  probable  consequences  of  such  a
prosecution.(See K.T.M.S. Mohd. And Another vs. Union of India),(1992)3  SCC
178. The court must be satisfied that such an inquiry  is  required  in  the
interests  of  justice  and  appropriate  in  the  facts   of   the   case."

                                          (Emphasis supplied)

      4.  Since, such  a satisfaction is completely lacking  in  this  case,
the impugned order in I.A No. 7192 of 2015 in EP No. 15/2014 has to  be  set
aside and we do so. The matter is remanded  to  the  High  Court  for  fresh
consideration in accordance with law.
      5.  We make it clear that we have not expressed any opinion on  merits
of the matter.
      6.  Accordingly, the appeals stand disposed of.

                                                     ….....................J.
                                                             (KURIAN JOSEPH)



                                                     ….....................J.
                                                           (A.M. KHANWILKAR)

NEW DELHI
JANUARY 12, 2017