AB GANI BHAT Vs. B K KOUL
LAWS(J&K)-2006-5-39
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 25,2006

Ab Gani Bhat Appellant
VERSUS
B K Koul Respondents

JUDGEMENT

- (1.) PROSECUTION of the respondent, Principal Islamia College Srinagar and his counsel is sought by the petitioner on two fold grounds, one that the averments made in the statement of facts filed in opposition to the contempt petition 26/03 are false, the other that his (petitionerâ„¢s) signature acknowledging the statement of facts has been forged. The alleged falsity of the statement of facts filed in the contempt petition needs to be appreciated in the light of the fact that while deciding the contempt petition on 26 -08 -2004, the statement of facts was taken into consideration in its entirety by the court and the proceedings culminated in a direction requiring the respondents to deposit Rs. 8,34,999.00 to be released in favour of the petitioner yet petitioner had registered grouse against the writ courtâ„¢s judgment before the Division Bench but of no avail, resultantly, the judgment of the Division Bench has attained finality. As a corollary the petitioner cannot re -agitate the issue, for, law is settled that no man can be vexed twice over a cause settled for good.
(2.) THIS brings me to the endeavor of the petitioner to bring the Principal and his counsel Mr. M.A.Qadri to book in terms of section 476 Criminal Procedure Code (for short Cr. P.C) which reads: 476. Procedure in cases mentioned in section 195. -(l)When any Civil, Revenue or Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in section 195, sub section (1), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary enquiry, if/any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the Presiding Officer of the Court, and shall forward the same to Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non -bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate and may bind over any person to appear and give evidence before such Magistrate: Provided that where the Court making the complaint in the High Court, the complaint may be signed by such officer of the Court as the Court may appoint. (2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under section 200. (3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceedings out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case .until such appeal is decided. 
(3.) A plain reading of the provision envisages essentially an exception to the bar against prosecution created by section 195 Cr. P.C. empowering the Court to order prosecution of a person on complaint for any offence referred to in section 195 Cr. P.C sub section (1) clause (b) or (c), appearing to have been committed in. or in relation to a proceeding in a Court defined in the section 476 Cr. P.C itself. Regard being had to the mandate of the section 476 Cr. P.C, it emerges that the power has to be exercised with great care and caution which makes it manifest that the exercise of power presupposes framing of an opinion to the effect that it is expedient in the interest of justice to make an inquiry, obviously adherence to the expression expedient in the interest of justice  is sine qua non. That being so, an obligation is cast upon the aggrieved person to satisfy the Court that the person sought to be proceeded against had a criminal intention in bringing about a document produced or given in evidence in such proceeding. It goes without saying that in absence of prima facie material satisfying the Court about the veracity of the material pressed into service besides bona fides of the accusation, the Court will be justified in its refusal to exercise the power. In taking such a view I am fortified by the judicial pronouncement handed down by the apex court in case Chajoo Ram versus Radhey Shyam and another reported in 1367 at (sic) AIR 1971 SC 1371 which may be noticed: 7. The prosecution for perjury should be sanctioned by the Courts only in those cases where perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false of evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.  To testify the petitioners case on legal parameters spelt out in the preceding para, the facts material for disposal of the petition may be stated. The petitioner having sought initiation of contempt proceedings on the alleged violation of the direction of the court resulted in issuance of a notice to the alleged contemnors who responded through the statement of facts (filed on 08 -04 -2004) with an endorsement: Received copy on behalf of the petitioner, A.G Bhat.  It is this endorsement which is projected as the basis for prosecution of the Principal and his counsel. How allegation is dealt with by the other side, para 10, page 6 of the objections to the CMP, may be extracted: 10. In reply to para No. (f) of the application, it is submitted that the petitioner was represented by the counsel, Mr. Mir Shafaqat Hussain and N. A. Ronga initially and on 6 -5 -2003, Mr. Shafaqat appeared on behalf of the petitioner and counsel for the respondents was also present in the court and has sought time to file statement of facts and on 10 -02 -2004, Mr. N.A. Ronga appeared on behalf of the petitioner and further time was given to the college authorities for filing of statement of facts and on 12 -04 -2004, petitioner has appeared in person and copies of statement of facts has been given to him in the open court. It will not be out of place to mention here that earlier the copy has already been received by the concerned clerks of the counsel on behalf of the petitioner. It is only because the petitioner was not available, a copy was given to his counselâ„¢s clerk who was representing the petitioner before the Honâ„¢ble High Court on number of occasions. So the allegations leveled against the respondents is misconceived, concocted and fabricated and is liable to be dismissed.  (emphasis supplied by me) ;


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