JAGDISH Vs. ASHOK KUMAR GUREJA

JUDGEMENT

(1.) Applicant has filed this application under Section 340, Cr.PC for a direction that the respondent be prosecuted for perjury for filing false affidavit in the Court and for that necessary direction be issued.

(2.) The brief facts of the case are that in LPA No.1./1993, respondent No. 1 Ashok Kumar Gureja was the appellant and on his behalf respondent No. 27Ashok Kumar, Kushwah has filed an affidavit on 3.8.2000 that he came to know that the respondent Gyanchand has expired. He inquired through his Advocate and he came to know about this fact on 1.8.2000, when he went to the office of Raghuveer Singh, it was told that Gyanchand has died. Thereafter Raghuveer Singh wrote a letter to the appellant on his Gwalior Address but since he was residing in Delhi, he could not receive the letter. Thereafter respondent No.2 Ashok Kushwah filed an affidavit in support of his application under Order 22 Rule 4 read with Section 151 IPC, in LPA. When the Division Bench was considering the application (I.A.No. 6541/2000), which was filed under Order 22, Rule 4 CPC, it was found that in the reply of the aforesaid application it was categorically stated that in another appeal between the same parties, filed by the same appellant which is FANo. 13/93, an application for substitution of legal representatives was filed on 16.7.1998 alleging therein that respondent died on 25.12.1997. Therefore, the Division Bench found that this contention of the appellant in his affidavit dated 3.8.2000 that he came to know about the death of the respondent only on 1.8.2000 through Raghuveer Singh, Advocate, was not correct and the Division Bench considering the facts of the case found that the appellant has sworn an affidavit which was false to his knowledge and thereafter the application for condonation of delay was dismissed and, consequently, IA No.6541/2000, IA.6542/2000 and M.C.P.No.2057/2001 were also dismissed and appeal was also dismissed as stood abated. Admittedly, on that day when the Division Bench was passing the order in LPA.No.1/1993 on 28.2.2002, no such prayer was made by the appellant that a direction be given regarding the prosecution of the respondent No. 2 Ashok Kushwah, for perjury who had filed a false affidavit before the Court.

(3.) There is no doubt that a false affidavit was submitted by Ashok Kushwah but the question for consideration in this case is whether in such matter whereafter lapse of more than four-and-a-half years, the applicant has filed this application under Section 340 Cr.PC, the permission should be granted for prosecution or not. Certainly a person, who has filed a false affidavit, should be prosecuted for perjury but we are of the view that no such prayer was made by the counsel for the respondent on the day when the Division Bench was passing the order in LPA on 28.2.2002.