In this Criminal Application, the applicant sought a criminal complaint against a responding Engineer for alleged perjury under Sections 191 and 193 of the IPC regarding false statements in an affidavit. The Court examined the affidavit and found no basis for the perjury claim.
Application rejected; no criminal complaint filed.
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
Criminal Application No.6 of 2009
Criminal Writ Petition NO.1000 of 2008
v/s.
J.K. Sharma
Sr.Engineer (Land) & Estate Office
Western Railway & anr.....Respondents
(Orig.Res.No.3)
Mr.S.G. Deshmukh i/by Mr.S.A. Tawate for Applicant.
Mr.Suresh Kumar for Res.No.1.
Mr.V.B. Konde-Deshmukh, APP for Res.No.2-APP.
CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ.
Dated : 27th July, 2009
P.C. :
1.Heard Mr.Deshmukh, the learned Counsel with Mr.Tawate
for the Applicant, Mr.Suresh Kumar for Respondent Nos.1
and the learned APP for Respondent No.2-State.
2.The Applicant had approached this Court in Criminal
Writ Petition No.1000 of 2008 and prayed for directions
against Respondent No.1-State of Maharashtra therein,
to register FIR and FIR against Respondent Nos.2, 3, 4
and their men (Sharad Ugale, J.K. Sharma and Permanand
Mishra) under Sections 452, 147, 148, 149, 323, 324,
395, 426, 504, 506, 109 and 114 of Indian Penal Code
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(IPC) read with Section 34 of IPC and to investigate
the case and to file the charge-sheet in the proper
Court of law against them. He further prayed for
direction to appoint a Special Investigating Agency
other than the Nalasopara, Virar Vasai and Manikpur
Police Station or alternatively CBI, Mumbai to
investigate the crime and to prosecute Respondent Nos.
2, 3 and 4 i.e. Sharad Ugale, J.K. Sharma and
Permanand Mishra and their men for the offences
committed by them against the Petitioner.
3. This Petition was disposed on 8.10.2008 by relegating the Petitioner to the alternative remedy of filing a private criminal complaint before the competent Court of Metropolitan Magistrate or Judicial Magistrate, First Class, as the case may be, and this Court refused to exercise extra-ordinary jurisdiction under Article 226 of the Constitution.
4.This Application has been filed subsequent to the disposal of Criminal Writ Petition No.1000 of 2008, praying for directions to the Registrar of this Court to take appropriate steps to file criminal complaint against the present Respondent No.1-Shri J.K. Sharma for the cognizance of offence of perjury committed by him under Section 191, Indian Penal Code (IPC) and punishable under Section 193 of the said Code. It is3
stated more particularly that in paragraphs 5, 11, 25,
28 and 33 of the Affidavit dated 29th July 2008 and in
the subsequent Affidavit of 25th August 2008, the
present Respondent No.1 has made false statements on
oath and, therefore, he is liable to be prosecuted for
the offence punishable under Section 193 of IPC.
Reference has been made to the statement that the
eviction order dated 11.2.2006 passed in Suit
No.PP/26/2004 by the Estate Officer was communicated to
the Applicant (Sudhakar Bhojaya Shetty). Mr.Deshmukh
submitted that this was an utterly false statement and
the order dated 11.2.2006 was never communicated to the
Applicant. Respondent No.1 thus made a false statement
on oath before this Court. Respondent No.1 has filed
an Affidavit-in-reply in this Application as well and
has denied that he made any false statement on oath in
either of his Affidavits filed in Writ Petition No.1000
of 2008.
5.During the course of arguments, Mr.Deshmukh, the
learned Counsel for the Applicant, has taken us through
paragraphs 5, 11, 25, 28 and 33 of the Affidavit dated
29th July 2008 and we have also perused the subsequent
Affidavit filed by Respondent No.1 on 25.8.2008 in Writ
Petition No.1000 of 2008. In paragraph 33 of the
Affidavit dated 29.7.2008, the present Respondent No.1
stated thus:-
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� 33. With reference to the paragraph 28 in
the said application the Petitioner
(Mr.Sudhakar Bhojaya Shetty) was given full
time and opportunity to present his case and
due process of law properly followed and order
was passed on the merits of the case before
the Estate Office. As the petitioner�s
encroachments on Railway�s land was of soft in
nature like tarpolene and polythene so, the
same can be cleared off from Railway land as
per sub sec (3) of section 5(A) of the PPE Act
1971.�
In paragraph 5 of the said Affidavit, the present
Respondent No.1 had clarified that in Suit No.PP/26/2004,
179 cases were decided, as per the order dated 11.2.2006,
against 179 persons unauthorisedly occupying the Railway
land at Nalasopara. They were given notice for demolition
of the unauthorised structures on 22.2.2008 and they were
informed that the demolition would be carried out from
26.2.2008 to 28.2.2008. It has been further clarified that
the order dated 11.2.2006 was in respect of the permanent
structures and when the party went at the site to remove
the permanent structures on 26.2.2008 and 27.2.2008, it was
noticed that in addition, there were 60 soft structures,
including the one of the Applicant. The soft structure
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means the structure which is erected with the help of
tarpolene sheets and jets into public road. It has been
further stated in paragraph 34 of the Affidavit dated
29.7.2008 that the Applicant was called upon to remove the
soft structure and he agreed to do so with the help of his
own men. So far as the permanent structure of the Applicant
is concerned, it has been made clear in both the Affidavits
that his case was pending. Our attention has also been
invited to the provisions of Section 5A(3) of the PP Act,
where the Estate Officer is authorised to remove the soft
structure without notice. We have also been shown the
order / communication dated 11.2.2008 in respect of the
soft structure claimed to have been erected by the
Applicant.
6.We are, therefore, satisfied that both the Affidavits
filed in Criminal Writ Petition No.1000 of 2008 by the
present Respondent No.1, did not state that the order
dated 11.2.2008 passed in Eviction Suit No.PP/26/2004
was communicated to the Applicant and, therefore, there
is no case made out to entertain this Application.
7.Hence, the Application is rejected.
[SMT.ROSHAN DALVI, J.][B.H. MARLAPALLE, J.]
2 issues framed by the court
Whether the statement made by Respondent No.1 in the affidavit filed in Writ Petition No.1000 of 2008 regarding communication of the eviction order constitutes perjury under Section 191 read with Sect
Whether the High Court is empowered to issue a criminal complaint for perjury based on statements made while disposing of a writ petition.
2 provisions across 1 enactments
Sudhakar Bhojaya Shetty
J.K. Sharma
State of Maharashtra
B.H. Marlapalle
Roshan Dalvi
As recorded by the court registry
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