Madhya Pradesh High Court
Kunj Bihari (Since Dead) Through His … vs Jhinguri Alias Duasiya on 15 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.4375/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
MP No. 4375 of 2022
(KUNJ BIHARI (SINCE DEAD) THROUGH HIS LEGAL HEIR DILIP TRIPATHI VS. JHINGURI
ALIAS DUASIYA AND OTHERS )
Dated : 15-10-2024
Ms Sanjana Sahni - Advocate for the petitioner.
Shri Santosh Kumar Pathak - Advocate for the respondent nos.2
and 4.
Shri Dilip Pandey – respondent no.3 is present in person.
Shri Ravi Mahendra Kumar Vyas – Advocate for respondent no.7.
Shri Gajendra Parashar – Panel Lawyer for the respondent
no.9/State.
By this order IA No.16531/2023 shall be decided.
2. The aforesaid application has been filed by respondent no.3,
namely, Dilip Pandey. It is mentioned that when he checked the status
of the case, then he found that Shri Umesh Pandey, Shri Saurabh
Pathak, Shri Soorya Prakash Pathak, Shri S.K. Pathak and Smt. Madhuri
Pathak have been engaged as Advocates on behalf of respondent no.3,
whereas he has never executed any Vakalatnama in favour of the
aforesaid advocates. It was further alleged that Vakalatnama has been
filed with forged signatures showing bad intention of advocates.
Respondent no.3 had also made a complaint to the police station, but
police has not taken any action. Accordingly, on 12/2/2024 this Court
passed the following order:-
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
2 M.P. No.4375/2022
Dated : 12-02-2024
Shri Saket Malik – Advocate for the
petitioner.
Shri Dilip Pandey, respondent No.3 is
present in person.
Shri S.K. Pathak – Advocate with Shri
Umesh Prasad Pandey – Advocate for respondents
No.2, 4 & 7.
Shri Gajendra Parashar – Panel Lawyer for
respondent No.9/State.
Considered I.A. No.16531/2023, an
application for issuing appropriate direction.
Shri Dilip Pandey is directed to give an
additional copy of this application to Shri Umesh
Prasad Pandey – Advocate for respondents No.2, 4
& 7, who has also filed his Vakalatnama on behalf
of respondent No.3.
This application has been filed by Shri Dilip
Pandey along with his personal affidavit to the
effect that Vakalatnama which has been filed on
11/01/2023 does not bear his signatures and it has
been fraudulently shown that Shri Umesh Prasad
Pandey, Smt. Madhuri Pathak, Shri Saurabh
Pathak, Shri Surya Prakash Pathak, Shri S.K.
Pathak – Advocates, have been engaged on his
behalf.
Thus in nutshell, a statement has been made
by Shri Dilip Pandey verbally also as well as in an
application supported by an affidavit that forged
Vakalatnama has been filed on his behalf.
The allegations made in the application are
serious. Even no prayer was made to withdraw the
Vakalatnama on behalf of respondent No.3.
Be that whatever it may be.
Under these circumstances, this Court is left
with no other option but to get the matter enquired
from Superintendent of Police, Satna to verify as
to whether forged Vakalatnama on behalf of Shri
Dilip Pandey has been filed or not?
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
3 M.P. No.4375/2022
Accordingly, Registry is directed to keep the
Vakalatnama filed on 11/01/2023 by Shri Umesh
Prasad Pandey containing the disputed signatures
of respondent No.3- Shri Dilip Pandey in a sealed
cover.
Superintendent of Police, Satna is directed
to conduct an enquiry as to whether disputed
Vakalatnama bears the signatures of Shri Dilip
Pandey, respondent No.3 or not? For the said
purposes, he can send the disputed Vakalatnama to
handwriting expert for comparison with the
admitted signatures of Shri Dilip Pandey. For the
said purposes, Superintendent of Police, Satna
may request the handwriting expert to come down
to Jabalpur to take the photographs of disputed
Vakalatnama.
The sealed envelope shall be opened in the
Office of Registrar (J-1) and the handwriting
expert shall be permitted to take the photographs
of disputed signatures on Vakalatnama presented
on 11/01/2023. The handwriting expert may also
take the specimen signatures of respondent No.3
along with admitted signatures on some pre-
existing documents.
If the services of handwriting expert are
taken, then he shall positively submit his report
within a period of 20 days from taking
photographs of disputed Vakalatnama.
The Superintendent of Police, Satna shall
positively submit his report latest by 20/03/2024.
List on 21/03/2024.
3. Thereafter, IA No.2204/2024 was filed on 15/2/2024 for
withdrawing the power on behalf of respondents no.2, 3 and 7. IA
No.2804/2024 was filed for taking additional documents on record
alongwith affidavits of Dilip Pandey and Dharmesh Chaturvedi to plead
that they identify the signatures of Dilip Pandey on the disputed
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
4 M.P. No.4375/2022
Vakalatnama and Dharmesh Chaturvedi had also stated in his affidavit
that the Vakalatnama was signed by Dilip Pandey in his presence.
4. In compliance of order dated 12/2/2024, the report of handwriting
expert was received, according to which, the disputed Vakalatnama does
not bear the signatures of Dilip Pandey. In view of the said report, this
Court passed the following order on 21/3/2024:-
Dated : 21-03-2024
Shri Saket Malik – Advocate for the
petitioner.
Shri Dilip Pandey – respondent no.3 is
present in person.
Shri Mrigendra Singh – Senior Advocate
with Shri S.K.Pathak, Shri Umesh Prasad Pandey
and Shri Saurabh Pathak – Advocate for
respondents no.2, 4 and 7.
Shri Dilip Parihar – Panel Lawyer for
respondent no.9.
In compliance of order dated 12.2.2024,
report of Handwriting Expert has been received
according to which Shri Dilip Pandey has not
signed the Wakalatnama.
I.A.No.2804/2024 has been filed by the
respondents along with affidavits of Pradeep
Kumar Tiwari and Dharmesh Chaturvedi stating
that Shri Dilip Pandey has signed the
Wakalatnama in their presence. However, the said
affidavits appear to be false in the light of the
report of handwriting expert.
Accordingly, issue notice to Shri Pradeep
Kumar Tiwari, s/o Shri Lakhpati Singh Tiwari,
aged about 41 years, occupation Business, r/o
Utaili, Tahsil Raghuraj Nagar, District Satna and
Shri Dharmesh Chaturvedi, s/o late shri
G.C.Chaturvedi, aged about 51 years, occupation
business, r/o Jeevan Jyoti Colony, Tahsil
Raghurajnagar, District Satna, to show cause as toSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
5 M.P. No.4375/2022why proceedings under the Contempt of Courts
Act may be not initiated against them for filing
false affidavits before this Court.
Shri Pathak prays for time to file reply to
I.A.No.16531/2023.
List on 23.4.2024.
5. Accordingly, show-cause notices were issued to Pradeep Kumar
Tiwari and Dharmesh Chaturvedi to show cause as to why the contempt
proceedings be not initiated against them for filing false affidavits.
Thereafter, on 26/4/2024 statement was made by Shri Mrigendra Singh,
Senior Advocate, that Dharmesh Chaturvedi, to whom a show-cause has
been issued by this Court by order dated 21/3/2024, has expired in a
road accident on 15/4/2024 and the Superintendent of Police, Satna was
directed to verify the factum of death of Dharmesh Chaturvedi. It
appears that verification report has not been received. Be that whatever
it may be.
6. Accordingly, the Superintendent of Police, Satna is directed to
submit a verification report ―as to whether Dharmesh Chaturvedi has
died in an accident or not?‖ The report must reach to this Court latest by
7/11/2024 alongwith copy of FIR and postmortem report.
7. It is not out of place to mention here that notice, which was issued
to Dharmesh Chaturvedi by registered post, was returned back with an
endorsement that in spite of the information, the addressee was not
found and his employee had informed that Dharmesh Chaturvedi is busy
in election canvassing. That endorsement is dated 8/4/2024, whereas
according to Shri Mrigendra Singh, Senior Advocate, Dharmesh
Chaturvedi had expired in a road accident on 15/4/2024.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
6 M.P. No.4375/2022
8. Respondent no.7-Pradeep Kumar Tiwari has filed his reply to the
show-cause notice, which reads as under:-
REPLY ON BEHALF OF RESPONDENT
NO.7
Respondent no.7 Humbly submits as Under-
1. That this hon’ble court issued show cause to
Respondent no. 7 on 21.03.2024 because affidavit
filled by Respondent no.7 appear to be false.
2. That Respondent no.7 is a low Educated person he
is only 12th class pass. therefore he is not aware
about legal proceeding.
3. That Respondent no. 7 was working as employee
in the farm of shri Dharmesh Chaturvedi. Shri
Dharmesh Chaturvedi with his Driver shri Pyarelal
sukla brought respondent no.7 to this hon’ble High
court and taken Signature of respondent no.7 on
blank paper he remains in good faith and he was
not aware about the content of affidavit Dharmesh
Chaturvedi has taken his aadhar card too.
4. That thereafter shri Dharmesh Chaturvedi sent to
Responent no.7 and Pyarelal shukla to canteen for
breakfast meanwhile shri Dharmesh Chaturvedi
prepared documents/ affidavit as he wanted to do.
5. That when Respondent no.7 came back from
canteen then shri Dharmesh Chaturvedi asked him
to sign the register and said let’s go there is no
time.
6. That Respondent no.7 is a low educated person he
remains in good faith he was not aware about the
content of affidavit he has done as stated by shri
Dharmesh Chaturvedi.
7. That whole incidence is this that Respondent no,7
believed on shri Dharmesh Chaturvedi remains in
good faith and shri Dharmesh Chaturvedi took
advantage of the same.
8. That there is mistake of Respondent no.7 is this
that he did not read the documents singed by him
due to good faith for aforesaid respondent no.7
summits unconditional apology and he assures thatSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
7 M.P. No.4375/2022he will never repeat it in his remains life.
An affidavit in support
Place: Jabalpur Ravi M.K.Vyas
Dated:02.10.2024 Advocate For Respondent no.7
9. Thus, it is clear from the affidavit of Pradeep Kumar Tiwari that
his signatures were obtained on a blank paper and his signatures were
also obtained on the register of Notary. From the reply which has been
filed by Pradeep Kumar Tiwari it appears that the affidavit was
notarized in a most casual manner and it was without verifying as to
whether Pradeep Kumar Tiwari has understood the contents of the
affidavit which was produced before Shri Ramdas Sharma for
notarization. Thus, it appears that there is a dereliction of duty on behalf
of Notary, Shri Ramdas Sharma. Conduct of the Notary shall be
considered at a later stage.
10. Thus, it is clear that Pradeep Kumar Tiwari has accepted that
whatever was mentioned in the affidavit was not his statement, but that
was an affidavit which was got typed by Dharmesh Chaturvedi and he
has signed the same.
11. Now the only question for consideration is that ―as to whether
such type of affidavit can be treated as a genuine affidavit or it is a false
affidavit?‖
12. It is submitted by Shri Vyas that respondent no.7-Pradeep Kumar
Tiwari had signed the affidavit under a bonafide belief because he is an
employee of Dharmesh Chaturvedi and, therefore, he may be pardoned
for the same.
13. Considered the submission made by counsel for respondent no.7-
Pradeep Kumar Tiwari.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
8 M.P. No.4375/2022
14. Section 52 of IPC reads as under:-
“52. “Good faith”.- Nothing is said to be done or
believed in ―good faith‖ which is done or believed
without due care and attention.‖
15. Thus, it is clear that anything done without care and attention
cannot be said to be done under good faith. In view of reply of
respondent no.7-Pradeep Kumar Tiwari, it appears that he had signed
the affidavit even without going through the contents thereof. However,
he knew fully well that the said affidavit shall be filed in the High
Court. Therefore, affidavit was filed with an intention to give a false
impression to the Court that whatever is mentioned in the affidavit is
correct. Therefore, such type of practice has to be deprecated and has to
be dealt with iron hands. Affidavit is a solemn statement made on oath
notarized by the Notary, who has been given Magisterial powers to
administer oath to the witnesses. Affidavit cannot be treated as a simple
waste piece of paper. Affidavits are filed before the Court by way of
evidence with an intention to impress the Court to rely on the same as a
solemn statement on oath. This Court in the case of Smt. Kamla
Sharma and others Vs. Sukhdevlal and others decided on 18/4/2022
in M.Cr.C. No.8770/2016 (Gwalior Bench) has held as under:-
5. Challenging the order passed by the Courts below, it
is submitted by the counsel for the applicants that the
Trial Court committed material illegality by rejecting
the application on the ground that the affidavit was
forged outside the Court, therefore, the bar as contained
under Section 195 of Cr.P.C. would not apply and the
complaint could have been filed only if the affidavit
was manipulated or forged while it was in custodia
legis. It is submitted that it is not a case of forging a
document, but it was a case of filing a false affidavit
and, therefore, the judgment passed by the SupremeSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
9 M.P. No.4375/2022Court in the case of Iqbal Singh Marwah and another
Vs. Meenakshi Marwah reported in AIR 2005 SC
2119 is not applicable. It is further submitted that the
Appellate Court has also rejected the appeal in limine
on the similar grounds. It is submitted by the counsel
for the applicants that filing of false affidavit before the
Court is a serious offence and the Courts should not
tolerate the same. The affidavit has a solemn
declaration of a statement upon oath, which can be used
as an evidence and nowadays a tendency is increasing
to file false affidavits in a most casual manner without
realizing their effect on the case. This increasing
tendency of filing false affidavits should be checked by
the Court by taking a very serious view in the matter. In
support of his contentions, the counsel for the
applicants has relied upon the judgments passed by the
Supreme Court in the case of State of HP Vs. Suresh
Kumar Verma reported in 1997 (1) MPWN 150 as
well as by the coordinate Bench of this Court (Jabalpur)
in the case of Mohammad Ibrahim Mohammad
Yusuf Vs. Imdadulla Haji Abdul Sattar and others
reported in 1995 MPLJ 255.
8. Section 3(3) of the General Clauses Act, 1897 reads
as under:-
―3(3) ―affidavit‖ shall include affirmation
and declaration in the case of persons by law
allowed to affirm or declare instead of
swearing;‖
9. Sections 3 and 4 of the Oaths Act, 1969 reads as
under:-
3. Power to administer oaths.- (1) The
following courts and persons shall have power to
administer, by themselves or, subject to the
provisions of sub-section (2) of section 6, by an
officer empowered by them in this behalf, oaths
and affirmations in discharge of the duties imposed
or in exercise of the powers conferred upon them
by law, namely:–
(a) all courts and persons having by law or consent of
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
10 M.P. No.4375/2022parties authority to receive evidence;
(b) the commanding officer of any military, naval, or
air force station or ship occupied by the Armed
Forces of the Union, provided that the oath or
affirmation is administered within the limits of the
station.
(2) Without prejudice to the powers conferred
by sub-section (1) or by or under any other law for
the time being in force, any court, Judge,
Magistrate or person may administer oaths and
affirmations for the purpose of affidavits, if
empowered in this behalf–
(a) by the High Court, in respect of affidavits
for the purpose of judicial proceedings; or
(b) by the State Government, in respect of
other affidavits.
4. Oaths or affirmations to be made by
witnesses, interpreters and jurors.-(1) Oaths or
affirmations shall be made by the following
persons, namely:–
(a) all witnesses, that is to say, all persons who may
lawfully be examined, or give, or be required to
give, evidence by or before any court or person
having by law or consent of parties authority to
examine such persons or to receive evidence;
(b) interpreters of questions put to, and evidence given
by, witnesses; and
(c) jurors:
Provided that where the witness is a child under
twelve years of age, and the court or person having
authority to examine such witness is of opinion
that, though the witness understands the duty of
speaking the truth, he does not understand the
nature of an oath or affirmation, the foregoing
provisions of this section and the provisions of
section 5 shall not apply to such witness; but in
any such case the absence of an oath or affirmationSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
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11 M.P. No.4375/2022shall not render inadmissible any evidence given
by such witness nor affect the obligation of the
witness to state the truth.
(2) Nothing in this section shall render it
lawful to administer, in a criminal proceeding, an
oath or affirmation to the accused person, unless
he is examined as a witness for the defence, or
necessary to administer to the official interpreter of
any court, after he has entered on the execution of
the duties of his office, an oath or affirmation that
he will faithfully discharge those duties.
10. Thus, it is clear that the affidavit is a statement
of declaration made by an affiant under oath for
the affirmation which is administered by a person,
who is authorized to do so by law. Therefore, an
affidavit is an another form of evidence which
contains the verification of its mode under oath on
penalty purgery.
11. Section 24 of IPC reads as under:-
―24. “Dishonestly”.–Whoever does anything
with the intention of causing wrongful gain to one
person or wrongful loss to another person, is said
to do that thing ―dishonestly‖.
11.1. Section 25 of IPC reads as under:-
―25. “Fraudulently”.–A person is said to do
a thing fraudulently if he does that thing with
intent to defraud but not otherwise.‖
11.2. Section 191 of IPC reads as under:-
―191. Giving false evidence.–Whoever,
being legally bound by an oath or by an express
provision of law to state the truth, or being bound
by law to make a declaration upon any subject,
makes any statement which is false, and which he
either knows or believes to be false or does not
believe to be true, is said to give false evidence.
Explanation 1.–A statement is within the meaningSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
12 M.P. No.4375/2022of this section, whether it is made verbally or otherwise.
Explanation 2.–A false statement as to the belief of
the person attesting is within the meaning of this
section, and a person may be guilty of giving false
evidence by stating that he believes a thing which he
does not believe, as well as by stating that he knows a
thing which he does not know.‖
11.3. Section 192 of IPC reads as under:-
―192. Fabricating false evidence.–Whoever causes
any circumstance to exist or 1[makes any false entry in
any book or record, or electronic record or makes any
document or electronic record containing a false
statement], intending that such circumstance, false
entry or false statement may appear in evidence in a
judicial proceeding, or in a proceeding taken by law
before a public servant as such, or before an arbitrator,
and that such circumstance, false entry or false
statement, so appearing in evidence, may cause any
person who in such proceeding is to form an opinion
upon the evidence, to entertain an erroneous opinion
touching any point material to the result of such
proceeding, is said ―to fabricate false evidence‖.
11.4. Section 193 of IPC reads as under:-
―193. Punishment for false evidence.–Whoever
intentionally gives false evidence in any stage of a
judicial proceeding, or fabricates false evidence for the
purpose of being used in any stage of a judicial
proceeding, shall be punished with imprisonment of
either description for a term which may extend to seven
years, and shall also be liable to fine,
and whoever intentionally gives or fabricates false
evidence in any other case, shall be punished with
imprisonment of either description for a term which
may extend to three years, and shall also be liable to
fine.
Explanation 1.–A trial before a Court-martial;
1[***] is a judicial proceeding.
Explanation 2.–An investigation directed by law
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
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13 M.P. No.4375/2022preliminary to a proceeding before a Court of Justice, is
a stage of a judicial proceeding, though that
investigation may not take place before a Court of
Justice.‖
12. The Supreme Court in the case of Dalip Singh
Vs. State of Uttar Pradesh and others reported in
(2010) 2 SCC 114 has held as under:-
―1. For many centuries Indian society cherished
two basic values of life i.e. ―satya‖ (truth) and ―ahimsa‖
(non-violence). Mahavir, Gautam Buddha and
Mahatma Gandhi guided the people to ingrain these
values in their daily life. Truth constituted an integral
part of the justice-delivery system which was in vogue
in the pre-Independence era and the people used to feel
proud to tell truth in the courts irrespective of the
consequences. However, post-Independence period has
seen drastic changes in our value system. The
materialism has overshadowed the old ethos and the
quest for personal gain has become so intense that those
involved in litigation do not hesitate to take shelter of
falsehood, misrepresentation and suppression of facts in
the court proceedings.
2. In the last 40 years, a new creed of litigants
has cropped up. Those who belong to this creed do not
have any respect for truth. They shamelessly resort to
falsehood and unethical means for achieving their
goals. In order to meet the challenge posed by this new
creed of litigants, the courts have, from time to time,
evolved new rules and it is now well established that a
litigant, who attempts to pollute the stream of justice or
who touches the pure fountain of justice with tainted
hands, is not entitled to any relief, interim or final.‖
12.1. The Supreme Court in the case of Muthu
Karuppan, Commissioner of Police, Chennai Vs.
Parithi Ilamvazhuthi and another reported in (2011)
5 SCC 496 has held as under:-
―15. Giving false evidence by filing false affidavit
is an evil which must be effectively curbed with a
strong hand. Prosecution should be ordered when it is
considered expedient in the interest of justice to punishSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
14 M.P. No.4375/2022the delinquent, but there must be a prima facie case of
―deliberate falsehood‖ on a matter of substance and the
court should be satisfied that there is a reasonable
foundation for the charge.‖
12.2. The Supreme Court in the case of Dhananjay
Sharma Vs. State of Haryana and others reported in
(1995) 3 SCC 757 has held as under:-
―38. Section 2(c) of the Contempt of Courts Act,
1971 (for short the Act) defines criminal contempt as
―the publication (whether by words, spoken or written
or by signs or visible representation or otherwise) of
any matter or the doing of any other act whatsoever to
(1) scandalise or tend to scandalise or lower or tend to
lower the authority of any court; (2) prejudice or
interfere or tend to interfere with the due course of
judicial proceedings or (3) interfere or tend to interfere
with, or obstruct or tend to obstruct the administration
of justice in any other manner. Thus, any conduct
which has the tendency to interfere with the
administration of justice or the due course of judicial
proceedings amounts to the commission of criminal
contempt. The swearing of false affidavits in judicial
proceedings not only has the tendency of causing
obstruction in the due course of judicial proceedings
but has also the tendency to impede, obstruct and
interfere with the administration of justice. The filing of
false affidavits in judicial proceedings in any court of
law exposes the intention of the party concerned in
perverting the course of justice. The due process of law
cannot be permitted to be slighted nor the majesty of
law be made a mockery of by such acts or conduct on
the part of the parties to the litigation or even while
appearing as witnesses. Anyone who makes an attempt
to impede or undermine or obstruct the free flow of the
unsoiled stream of justice by resorting to the filing of
false evidence, commits criminal contempt of the court
and renders himself liable to be dealt with in
accordance with the Act. Filing of false affidavits or
making false statement on oath in courts aims at
striking a blow at the rule of law and no court canSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
15 M.P. No.4375/2022ignore such conduct which has the tendency to shake
public confidence in the judicial institutions because the
very structure of an ordered life is put at stake. It would
be a great public disaster if the fountain of justice is
allowed to be poisoned by anyone resorting to filing of
false affidavits or giving of false statements and
fabricating false evidence in a court of law. The stream
of justice has to be kept clear and pure and anyone
soiling its purity must be dealt with sternly so that the
message percolates loud and clear that no one can be
permitted to undermine the dignity of the court and
interfere with the due course of judicial proceedings or
the administration of justice. In Chandra Shashi v. Anil
Kumar Verma [(1995) 1 SCC 421 : 1995 SCC (Cri)
239] the respondents produced a false and fabricated
certificate to defeat the claim of the respondent for
transfer of a case. This action was found to be an act
amounting to interference with the administration of
justice. Brother Hansaria, J. speaking for the Bench
observed: (SCC pp. 423-24, paras 1 and 2)
―The stream of administration of justice has to remain
unpolluted so that purity of court’s atmosphere may
give vitality to all the organs of the State. Polluters of
judicial firmament are, therefore, required to be well
taken care of to maintain the sublimity of court’s
environment; so also to enable it to administer justice
fairly and to the satisfaction of all concerned.
Anyone who takes recourse to fraud deflects the course
of judicial proceedings; or if anything is done with
oblique motive, the same interferes with the
administration of justice. Such persons are required to
be properly dealt with, not only to punish them for the
wrong done, but also to deter others from indulging in
similar acts which shake the faith of people in the
system of administration of justice.‖
12.3. The Supreme Court in the case of Baban
Singh and another vs. Jagdish Singh and others
reported in AIR 1967 SC 68 has held as under:-
7. The matter has to be considered from three stand
points. Does the swearing of the false affidavits amountSignature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 17-10-2024
14:26:19
16 M.P. No.4375/2022to an offence under S. 199, Indian Penal Code or under
either S. 191 or 192, Indian Penal Code ? If it comes
under the two latter sections, the present prosecution
cannot be sustained. Section 199 deals with a
declaration and does not state that the declaration must
be on oath. The only condition necessary is that the
declaration must be capable of being used as evidence
and which any Court of justice or any public servant or
other person, is bound or authorised by law to receive
as evidence. Section 191 deals with evidence on oath
and S. 192 with fabricating false evidence. If we
consider this matter from the standpoint of S. 191,
Indian Penal Code the offence is constituted by
swearing falsely when one is bound by oath to state the
truth because an affidavit is a declaration made under
an oath. The definition of the offence of giving false
evidence thus applies to the affidavits. The offence may
also fall within S. 192. It lays down inter alia that a
person is said to fabricate false evidence if he makes a
document containing a false statement intending that
such false statement may appear in evidence in a
judicial proceeding and so appearing in evidence may
cause any person who, in such proceeding is to form an
opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of such
proceeding. When Baban Singh and Dharichhan Kuer
made declarations in their affidavits which were
tendered in the High Court to be taken into
consideration, they intended the statements to appear in
evidence in a judicial proceeding, and so appearing, to
cause the Court to entertain an erroneous opinion
regarding the compromise. In this way their offence
came within the words of Ss. 191/192 rather than S.
199 of the Indian Penal Code. They were thus prima
facie guilty of an offence of giving false evidence or of
fabricating false evidence for the purpose of being used
in a judicial proceeding.
13. Filing a false affidavit also amounts to
contempt of Court. In the case of Chandra Shashi Vs.
Anil Kumar Verma reported in (1995) 1 SCC 421 the
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17 M.P. No.4375/2022
Supreme Court has held as under:-
8. To enable the courts to ward off unjustified
interference in their working, those who indulge in
immoral acts like perjury, prevarication and motivated
falsehoods have to be appropriately dealt with, without
which it would not be possible for any court to
administer justice in the true sense and to the
satisfaction of those who approach it in the hope that
truth would ultimately prevail. People would have faith
in courts when they would find that (truth
alone triumphs) is an achievable aim there; or
(it is virtue which ends in victory) is not
only inscribed in emblem but really happens in the
portals of courts.
9. The aforesaid thoughts receive due support from
the definition of criminal contempt as given in Section
2(c) of the Act, according to which an act would
amount be so if, inter alia, the same interferes or tends
to interfere, or obstructs or tends to obstruct the
administration of justice. The word ‗interfere’, means in
the context of the subject, any action which checks or
hampers the functioning or hinders or tends to prevent
the performance of duty, as stated at p. 255 of Words
and Phrases (Permanent Edn.), Vol. 22. As per what
has been stated in the aforesaid work at p. 147 of Vol.
29 obstruction of justice is to interpose obstacles or
impediments, or to hinder, impede or in any manner
interrupt or prevent the administration of justice. Now,
if recourse to falsehood is taken with oblique motive,
the same would definitely hinder, hamper or impede
even flow of justice and would prevent the courts from
performing their legal duties as they are supposed to do.
10. A reference to standard textbooks on contempt,
to wit, C.J. Miller’s Contempt of Court;
Oswald’s Contempt of Court; and Anthony Arlidge &
David Eady’s The Law of Contempt would amply bear
what has been stated above; and that if a forged and
fabricated document is filed, the same may amount to
interference with the administration of justice. Of
course, for the act to take this colour there is required to
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18 M.P. No.4375/2022
be an element of deceit or the knowledge of the
statement being forged or fabricated. This is what finds
place at pages 399 to 401 (2nd Edn.); page 62 (1993
Reprint); and pages 186 and 188 (1982 Edn.)
respectively of the aforesaid treatises.
14. The legal position thus is that if the publication
be with intent to deceive the court or one made with an
intention to defraud, the same would be contempt, as it
would interfere with administration of justice. It would,
in any case, tend to interfere with the same. This would
definitely be so if a fabricated document is filed with
the aforesaid mens rea. In the case at hand the
fabricated document was apparently to deceive the
court; the intention to defraud is writ large. Anil Kumar
is, therefore, guilty of contempt.
14. The judgment passed in the case of
Dhananjay Sharma (supra) has been relied upon by
the Supreme Court in the case of Rita Markandey Vs.
Surjit Singh Arora reported in (1996) 6 SCC 14.
Thus, it is clear that a false affidavit which is executed
deliberately knowing the fact that the declaration given
on oath is false, has to be viewed with all seriousness
and this practice of filing of such affidavit has to be
deprecated. Therefore, counsel for the applicants is
right in submitting that filing of the affidavit should be
dealt with heavily.
16. Thus, it is clear that false affidavit would be an offence under
Sections 191 and 192 of Cr.P.C., apart from contempt of Court. Pradeep
Kumar Tiwari has accepted his guilt of filing a false affidavit before this
Court. This affidavit was filed alongwith IA No.2804/2024, which was
signed by Shri S.K. Pathak, Advocate. Thus, it is clear that Shri S.K.
Pathak, Advocate had relied upon a false affidavit of Pradeep Kumar
Tiwari. Since Pradeep Kumar Tiwari has admitted that he has filed a
false affidavit at the instance of his employer Dharmesh Chaturvedi,
therefore, he is held guilty of contempt of Court.
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19 M.P. No.4375/2022
17. So far as filing of false Vakalatnama on behalf of respondent
no.3-Dilip Pandey is concerned, it was contended by Dilip Pandey that
after he noticed that a forged Vakalatnama has been filed on his behalf,
therefore, he had requested Shri S.K. Pathak, Advocate to withdraw his
Vakalatnama, but he refused to do so. Even Shri Pathak during the
course of arguments accepted that he had received a telephonic call from
the police station enquiring about the forged Vakalatnama. Thus, the
contention of Dilip Pandey that he had made a report to the police is
also supported by the admission made by Shri S.K. Pathak, Advocate.
Unfortunately, for the reasons best known to Shri Pathak, he has
unnecessarily dragged this issue to the stage where this Court was
required to obtain the report of handwriting expert as well as false
affidavits were also filed by Pradeep Kumar Tiwari and Dharmesh
Chaturvedi. Why Shri S.K. Pathak, Advcoate was not interested to
withdraw his Vakalatnama even after an information was given by Dilip
Pandey that the Vakalatnama does not bear his signatures? Be that
whatever it may be.
18. Whenever there is some dispute with regard to Vakalatnama, then
the parties can file a fresh Vakalatnama to resolve the dispute, but Shri
S.K. Pathak, Advocate did not resort to that method. Ultimately when an
order was passed on 12/2/2024, then it appears that Shri S.K. Pathak
with an intention to get rid of examination of Vakalatnama by
handwriting expert, filed an IA No.2204/2024 on 15/2/2024 to withdraw
his Vakalatnama. However, in the said application also it was insisted
by Shri S.K. Pathak, Advocate that he has been informed by Dharmesh
Chaturvedi, that the signatures of Dilip Pandey on the Vakalatnama are
genuine. Therefore, the application for withdrawal of Vakalatnama on
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MISHRA
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20 M.P. No.4375/2022
behalf of respondents no.2, 3 and 7 was not unconditional and thus, it is
hereby rejected.
19. Shri S.K. Pathak fairly concedes that he does not wish to
challenge the report of the handwriting expert, according to which, the
Vakalatnama was not signed by Dilip Pandey. Once the said finding is
not challenged by Shri Pathak, then it is clear that his appearance on
behalf of Dilip Pandey was unauthorized and was based on a forged
Vakalatnama and in spite of the information given by Dilip Pandey, Shri
S.K. Pathak refused to withdraw himself on behalf of respondent no.3.
No lawyer can represent a party on the basis of a forged Vakalatnama.
Vakalatnama is an authority letter which is executed by the litigant
thereby giving an authority to the concerning advocate to appear on his
behalf and in absence of any Vakalatnama, no lawyer except designated
Senior Advocate can appear on behalf of the litigants.
20. The State Commissioner of Questioned Documents, Government
of Madhya Pradesh, Jahangirabad, Bhopal by his report dated 11/3/2024
has given the following opinion:-
―The person who wrote the red enclosed standard
Hindi writing and signatures stamped and marked S1 to
S11 and N1 to N7 (said to be written by Deelip Pandey)
did not write the red enclosed questioned signature
stamped and marked Q1.‖
21. In absence of any challenge to the above-mentioned report of the
State Examiner of Questioned Documents, Government of India,
Jahangirabad, Bhopal it is held that appearance of Shri S.K. Pathak,
Advocate on behalf of Dilip Pandey was on the strength of forged
documents and, therefore, it is held that Shri S.K. Pathak, Advocate was
unauthorizedly appearing on behalf of Dilip Pandey-respondent no.3
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MISHRA
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21 M.P. No.4375/2022
and, therefore, he is restrained from appearing on behalf of respondent
no.3-Dilip Pandey in this case with immediate effect.
22. Faced with such a situation, it is submitted by Shri S.K. Pathak
that he has realized his mistake and, therefore, he may be pardoned for
the mistake which he has committed and in fact he should have
withdrawn the Vakalatnama as soon as he was informed by Dilip
Pandey that the Vakalatnama does not bear his signatures. It is also
submitted by Shri S.K. Pathak that he has undergone bypass surgery
twice and is in practice for the last several years and his next generation
is also in practice.
23. Since Shri Pathak has realized his mistake, therefore, it is believed
that in future he would ensure that at least from his office there shall not
be any representation on behalf of any litigant unless and until the
Vakalatnama is duly verified by him.
24. As already held, filing of a false affidavit is an offence, apart from
contempt of Court. A false affidavit of Pradeep Kumar Tiwari was filed
by Shri S.K. Pathak, Advocate, therefore, he also cannot get away from
his liability. But looking to the controversy involved in the present case
and apologies tendered by Shri S.K. Pathak, Advocate as well as Shri
Pradeep Kumar Tiwari, this Court is of the considered opinion that for
the time being their apologies can be accepted subject to payment of
cost. It is submitted by Shri Pathak that he is ready to deposit cost of
Rs.15,000/- for creating a situation where this Court instead of deciding
the case on merits was required to decide as to whether Shri Pathak was
appearing on behalf of respondent no.3-Dilip Pandey on the strength of
a genuine Vakalatnama or a forged Vakalatnama. Similarly, Shri Vyas
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22 M.P. No.4375/2022
has submitted that since respondent no.7 has realized his mistake,
therefore, he may be dealt with liberally.
25. Accordingly, by issuing a warning to Shri S.K. Pathak, Advocate
as well as to Pradeep Kumar Tiwari S/o Shri Lakhpati Singh Tiwari,
Aged about 30 years, R/o Utaili, Tahsil Raghuraj Nagar, District Satna
(MP), IA No.16531/2023 is finally disposed of subject to payment of
cost of Rs.15,000/- each by Shri S.K. Pathak, Advocate and Pradeep
Kumar Tiwari before the Registry of this Court within a period of one
month from today. It is made clear that in case if the cost is not
deposited, then the Registrar General of this Court apart from initiating
the proceedings for recovery of cost, shall also register a case for
contempt of Court.
Conduct of Shri Ramdas Sharma, Notary:
26. Chapter 9 Rule 13 of M.P. High Court Rules, reads as under:-
13. (1) The person before whom an affidavit is sworn,
shall ask the affiant if he has read the affidavit and
understood the contents thereof. If the affiant states that
he has not read it or appears not to have understood the
contents or does not know the language, he shall read
and explain it or cause another person to read and
explain to such person in his presence. Until he is
satisfied that the affiant has fully understood its
contents, he shall not allow the affidavit to be sworn.
(2) Where an affidavit has been so read, translated or
explained, the officer administering the oath or
receiving the solemn affirmation shall certify in writing
at the foot of the affidavit that it has been so read,
translated or explained in his presence and that the
affiant appears to have understood the same at the time
of making the affidavit and made his signature or
finger-impression in the presence of the officer.
(3) Where –
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23 M.P. No.4375/2022
(a) the affiant refutes the contents of the affidavit,
(b) the affiant is found to be impersonating,
(c) the statements made in the affidavit are ex-facie
false, or
(d) the officer administering the oath or receiving
solemn affirmation, considers it necessary for any other
sufficient reason,
– he shall impound the affidavit and forward it to
the Registrar for such action as he may consider
necessary in accordance with law / rules made under
the law or statute.
Where an affidavit is impounded under this rule,
the officer impounding the same shall certify thereon
the date on which and the circumstances in which it
was impounded.
27. Gauhati High Court in the case of United India Insurance Co.
Ltd. Vs. Smt. Arti Bano reported in 2022 (2) Gau LR 223 has held as
under:
―6. As per the Notaries Act or Oaths Act the Notaries or
Oath Commissioners are required to follow the Rules
carefully in administering oath/affirmation. The act
should not be done in a casual or incomplete manner
giving room for an impression that the affidavit has
been attested in the absence of the deponent or that the
affidavit has been attested on a day other than the day
on which it was signed by the deponent or that the
transaction has not been entered in the Oath Register.
The Rules have been framed precisely to safeguard
against such contingencies and to ensure that such
mistakes do not occur. On account of the Rules hot
being followed sincerely, such mistakes continue to
occur.
7. It is unfortunate that the importance of affidavits and
the seriousness attached to due and proper execution
thereof is constantly ignored or missed by the persons
concerned. An affidavit is not a mere typed format, to
be signed and attested as an empty formality. AnSignature Not Verified
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MISHRA
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24 M.P. No.4375/2022affidavit is a solemn and voluntary declaration or
statement of facts in writing, relating to matters in
question or at issue, and sworn or affirmed and signed
by the deponent before a person or officer duly
authorized to administer such oath or affirmation. The
courts are required to determine disputes or causes and
make orders or give judgments, acting on such
affidavits. In the absence of due ‗affirmation’ or
‗swearing’, an affidavit has no value and in fact is not
valid.
8. Thus, when an affidavit is tendered in court, it is
intended to be acted upon as evidence in such
proceedings. Evidence, unless given an oath or solemn
affirmation, is of no value. Normally administering oath
before recording evidence is the function of persons
authorized to receive evidence. This important and
solemn function is assigned and entrusted to Notaries,
Oath Commissioners and Designated Officers, under
Code of Civil Procedure, Code of Criminal Procedure
and High Court Rules. Persons entrusted with the duty
and power of administering oath or affirmation should
always bear in mind, the solemnity and sanctity
attached to the act of administering oath/affirmation;
they should not forget that affidavit’s are intended to be
acted upon as evidence for rendering decisions
determining rights and obligations of parties. Making
an endorsement relating to administration of oath or
affirmation in the absence of a party, is similar to
recording evidence in the absence of the witness. Such
things should not happen; these things cannot be
permitted to happen; and that these matters are required
to be reminded to the persons concerned, is an
indication of the sad state of affairs.
9. Section 3(1) of the Oaths Act, 1969, empowers
Courts and persons having by law or consent of parties,
authority to receive evidence, to administer oaths and
affirmation in discharge of the duties imposed or in
exercise of the powers conferred upon them by law.
Sub-section (2) of section 3 of Oaths Act provides that
the High Court may empower any person to administer
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25 M.P. No.4375/2022
oaths and affirmation in respect of affidavits for the
purpose of judicial proceedings. Section 139 of Code of
Civil Procedure provides that in the case of any
affidavit under the Code, oath or affirmation may be
administered to the deponent by any Court or
Magistrate, any Notary appointed under the Notaries
Act, 1952 or any officer or other person appointed by
the High Court in that behalf or any officer appointed
by any other Court which the State Government has
generally or specially empowered in that behalf.
10. Section 8(e) of the Notaries Act, 1952 empowers a
Notary to administer oath to, or take affidavit from any
person rule 11(2) of the Notaries Rules, 1956, requires
a Notary to maintain a Notarial Register showing serial
number, date, nature of notarial act name of the
executant or person concerned with full address,
contents of document, notarial fee-stamp affixed, fee
prescribed and fee charged, serial number of receipt
book. The Notary is also required to obtain the
signature of person who is executing the document, in
the register.‖
28. From the affidavit of Pradeep Kumar Tiwari which has been
notarized by Shri Ramdas Sharma, Notary, it is clear that it is not in
accordance with Rule 13 of Chapter 9 of M.P. High Court Rules. There
is no endorsement that affiant had understood the contents of affidavit.
Even reply filed by Pradeep Kumar Tiwari indicates that it was not
verified by Shri Ramdas Sharma, as to whether the affiant has
understood the contents of affidavit. Therefore, conduct of Shri Ramdas
Sharma is unbecoming of Notary. Accordingly, SP, Satna is directed to
get the affidavit of Pradeep Kumar Tiwari filed alongwith IA
No.2804/2024 for comparison of signatures of Notary with the
signatures of Shri Ramdas Sharma, Notary. Let affidavit of Pradeep
Kumar Tiwari filed alongwith IA No.2804/2024 be kept in sealed cover
and SP, Satna is directed to collect the same from Registry of this Court.
Signature Not Verified
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MISHRA
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26 M.P. No.4375/2022
Shri Ramdas Sharma, Notary is directed to give his specimen signatures
to SP, Satna for comparison purpose.
29. SP, Satna is directed to submit report of State Examiner of
disputed signatures latest by 10/11/2024.
30. Further action shall be decided after report of handwriting expert
is received.
31. List this case on 13/11/2024.
(G.S. AHLUWALIA)
JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
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