SHIV RAMAN GAUR Vs. MADAN MOHAN KANDA

JUDGEMENT

(1.) Madan Mohan Kanda, the respondent herein was working as an Assistant in the office of the Deputy Commissioner, Sirsa. Vide order dated July 24, 1980, he was removed from service. He preferred an appeal against such removal before the Commissioner, Hissar Division, Hissar. It was set aside on February 9, 1982. The order seemingly was passed in the presence of Madan Mohan Kanda. A minor punishment, however, was imposed on him by stoppage of one increment with cumulative effect. The Commissioner Hissar Division, Hissar accepting the appeal directed the Deputy Commissioner, Sirsa to take back the respondent in service forthwith and treat the period from the date of his removal from service till the date of his joining ......... as the leave of the kind due. On February 23, 1982, the Deputy Commissioner Sirsa issued Shri Kanda his posting order. Since no formal orders regarding his leave, fixation of pay and seniority had been passed, Shri Kanda represented to the authorities concerned. All the same, he did not join at his place of posting. Rather on April 20, 1982, he filed nomination papers as a candidate for elections to the Haryana Vidhan Sabha from Sirsa Constituency. In support thereof, on April 23, 1982 at the askance of the Returning Officer, he filed an affidavit to the effect that at present he was not holding any office of profit under the Government of India or Government of any State. Since according to the complainant-petitioner Shiv Raman Gaur, General Assistant to Deputy Commissioner, Sirsa who was working as Returning Officer for the said Assembly Constituency, the respondent was continuing in service, he took the view that the respondent had intentionally filed a false affidavit and in this manner had committed offences punishable under Ss.199/200 of the Indian Penal Code.

(2.) The complainant-petitioner then filed a complaint against the respondent. The respondent was summoned. Pre-charge evidence was examined. The learned trial Magistrate framed charges under Sections 199/200 of the Penal Code against him. Feeling, aggrieved from the order of framing of charge, he preferred a revision petition in the Court of Session. The learned Additional Sessions Judge, Sirsa allowed the revision petition, set aside the order framing the charge and discharged the accused being of the view that it could not be inferred that the respondent had an intention to file a false affidavit or that he had the knowledge that the facts stated therein were false. He was also influenced by the fact that the affidavit was not acted upon by the concerned Returning Officer before whom it was filed. It is this view of the learned Additional Sessions Judge, Sirsa which has been subjected to revision in this Court by the complainant, with the aid of the State of Haryana.

(3.) Having heard the learned counsel for the petitioner, I am of the view that there is no substance in the revision petition. For the offences under Ss.199/200 of the Penal Code, the punishment is in the same manner as if the accused gave false evidence under S.193 of the Indian Penal Code. The primary ingredient of S.193 of the Code is intentionally giving false evidence in any stage of judicial proceedings or intentionally fabricating false evidence for the purpose of being used in any stage of the judicial proceedings. Thus, the intention is also a major ingredient for the offences under Ss.199/200 of the Code. Now here the benefit of doubt occurs because the respondent on the day had not actually been reinstated to service and the order setting aside his removal had not been put into effect factually. It is a different thing to say that the legal effect of the order of the Commissioner, Hissar Division, Hissar in reinstating him to service would mean that he was taken back in service. But yet the respondent could well entertain the belief that he had I factually not been taken back and until he joined back, the order had not come into operation. In any event, it was doubtful in the circumstances, as to whether the respondent had the requisite intention to file a false affidavit or that he had knowledge that the facts stated therein were deliberately false to his knowledge. A mistaken view of facts is not necessarily a false view of facts. In this view of the matter, the learned Additional Sessions Judge cannot be said to be far too wrong in taking the view which has led to the discharge of the respondent. His having opted for that view would not warrant the reversal of his view. His remark that the affidavit was not acted upon is uncalled for, for the affidavit was put to use all the same. This part of his order is not endorsed.