Dua, J. - (1.) This appeal by special leave is directed against the Judgment and order of a Division Bench of the Allahabad High Court dated March 13. 1968 affirming the order of a learned single Judge of that Court directing that a complaint be filed against the appellant for his prosecution for making a false statement in para 10 of his affidavit dated July 6. 1960 to the effect that he had not been acting as Sarpanch till December 7, 1957.
(2.) The relevant facts necessary for understanding the controversy may now be briefly stated. Chajoo Ram, appellant, was elected Sarpanch of the Nyaya Panchayat of Risia Bazar, Tehsil Nanpora, District Bharaic at the election held for that office on October 29, 1956. Radhey Shyam (respondent in this Court) who was defeated in that election filed an election petition which was dismissed on June 3, 1958. During the trial of that petition an injunction was issued restraining the appellant from functioning as a Sarpanch. That order remained in force from December 3, 1956 to December 10, 1957. After the dismissal of the election petition, the appellant started functioning as Sarpanch. Several complaints also seem to have been made by Radhey Shyam and some others to the District Magistrate, alleging irregularities to have been committed by the appellant. As no action was taken on those complaints Radhe, Shyam, respondent, filed a writ petition (W. P. No. 89 of 1960) in the Allahabad High Court praying for a mandamus directing enquiries into the allegations contained in his complaint against the appellant. This writ petition was allowed on September 4, 1961 and a writ of mandamus was issued directing the District Magistrate and the Sub-Divisional Magistrate to hold an enquiry against the appellant but the question of determining whether it was in public interest to hold an enquiry was left to those authorities. In the course of the writ proceedings several affidavits were filed in the High Court by the contesting parties. We are, however, only concerned with para 10 of the affidavit dated July 6, 1960 filed by the appellant. That paragraph reads: "That the deponent was not acting as a Sarpanch till 7th December, 1957. when he was given over charge of the office of Sarpanch by opposite party No. 4 Chhotey Lal Sahayak Sarpanch the cases mentioned below none were entrusted to the benches by the deponent but were entrusted by the Sahayak Sarpanch opposite party No. 4 who was acting in place of the under the orders of the Court after the petitioner had filed election petition. The cases mentioned below were dealt with by the deponent under the old procedure in the absence of any direction issued to him". Then four cases are mentioned which had been filed in No, 1956. In order to fully appreciate the contents of this paragraph it is necessary to reproduce paras 9 and 10 of Radhey Shyamn's affidavit dated. March .28, 1960 to which the appellant's affidavit dated July 6, 1960 was a reply:- "9. That the Sarpanch (opposite party No. 3) referred many cases to the Special Bench constituted by him. 21 cases out of the first list of 22 cases were allotted to this Special Bench by him. Further out of 62 criminal cases and 35 civil cases instituted in the year 1956-57 the Bench consisting of the deponent as a Panch (Bench No. 1) was allotted only16 criminal and 8 civil cases whereas it should have been allotted 21 criminal and 12 civil cases. 10. That in many cases the deponent was not informed of the dates of the hearing fixed by Sarpanch and many a time he could not therefore, present himself in the Bench and the cases were decided in his absence. Sarpanch who was not a member of this Bench participated in the proceedings of this Bench". In reply to para 9 of this affidavit the appellant had stated in his affidavit of July 6, 1960:- "There is no dispute with regard to the procedure laid down in this paragraph. It is a new amendment". There was a reminder affidavit dated July 15, 1960 filed by Radhey Shyam in which reply to para 10 of the appellant's affidavit dated July 6, 1960 is contained in para 8 and it reads as follows: "Regarding para 10 - it is false and denied that Chajjo Ram, did not act as Sarpanch till the 7th December, 1957. As a matter of fact he was acting as Sarpanch throughout in violation of the day order passed against him. It is also denied that other cases except those mentioned by Chajoo Ram in this para were not referred to the Benches by him. Chajoo Ram was throughout acting as Sarpanch and he in that capacity referred cases to benches according to his choice. The procedure followed by Sri Chajoo Ram opposite party no 3 was in violation of the procedure laid down in the Panchayat Raj Act and Rules framed thereunder. The rest of the contents of this para are denied." The appellant filed a counter- affidavit dated July 24, 1960 to this rejoinder. As we are only concerned with the contents of paragraph 10 in the appellant's affidavit dated July 6, 1960 we need only refer to the relevant assertions in this counter-affidavit. In para 1 the deponent stated that he had not been acting as a Sarpanch on June 6, 1957 and with regard to Annexure 34 it was submitted that the entire document had been written by Shri B. P. Joshi, Mantri whose duty it was to see that the provisions of the Panchayat Raj Act and rules and Bye-laws made thereunder and all orders issued or authorised by the Government or prescribed authority were complied with by the Gram Panchayat and Nyaya Panchayat and to bring to their notice any irregularity or omission on their part. Shri Chhotey Lal, Sahayak Sarpanch had gone out on June 3, 1957 and had asked the deponent to do ministerial work which he could do under the Act. Radhey Shyam, respondent, filed a further rejoinder to viz:July 24, 1960 but in this rejoinder nothing new was stated on this point.
(3.) On December 10, 1962 Radhey Shyam, respondent moved in the High Court an application under Section 476, Criminal Procedure Code for the appellant's prosecution. The learned Single Judge directed by his order dated January 27, 1964 that a complaint be made against, the appellant in respect of two counts, one of them which survives for our consideration being that he had made a false statement in paragraph 10 of his affidavit dated July 6, 1960 to the effect that he had not been acting as Sarpanch till December 7, 1957. On Chajoo Ram's appeal before a Division Bench it was urged on behalf of Radhey Shyam as a premature. This point was referred to a Full Bench, Which answered the reference negativing the preliminary objection. When the appeal came back to the Division Bench it was argued on behalf of the appellant that in view of the provisions of Section 479-A Criminal Procedure code no prosecution could be taken under Section 476 of the Code. This contention was repelled and it was held that a person filing an affidavit in court could not be considered to have appeared as a witness before that court as contemplated by Section 479-A. Dealing with the merits the Division Bench of the High Court observed that the respondent had placed on the record four receipts (Nos. 39 to 42) and "a copy of the report supposed to have been submitted by the appellant as Sarpanch to the Panchayat Raj Officer" indicating that the appellant had acted as Sarpanch between June 4 and June 6, 1957. The appellant's explanation, that Chhotey Lal, Sahayak Sarpach was on leave from June 4 to June 11, 1957 and that the appellant had merely worked for Chhotey Lal in those days, was not accepted for the reason that this explanation was neither included in the affidavit filed by the appellant in reply to the application under Section 476, Criminal P.C. nor in a supplementary affidavit filed by him in connection with some other matter. The fact that Radhey Shyam, respondent, was prompted by considerations of malice in initiating these proceedings was considered to be immaterial. With respect to the second statement, which was also the subject matter of the learned Single Judge's direction, the Division Bench held that charge to be unsustainable and the order of the single Judge directing a complaint to be filed with respect to that charge was set aside. The appeal was accordingly allowed in part and in regard to para 10 of the affidavit dated July 6, 1960 it was dismissed. It is this order which is assailed before us.;