TMI Blog1971 (3) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 irre- gularities to have been committed by the, appellant. As no action was taken on those complaints Radhey 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 write petition was allowed on- September 4, 1961 and a writ of mandamus was issued directing the District Magistrate and thee 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stay 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 the 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 Para 10 in the appellant's affidavit dated July 6, 1960 we need only refer to the relevant assertions in this counter-affidavit. In Para I 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 authorized by the Government or prescribed authority were complied with by the Gaon Panchayat and Nya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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. The first point which was pressed before us relates to the effect of s. 479-A, Cr. P.C. This section was added to the Code of Criminal Procedure by Act 26 of 1955 with the object of eradicating the evils of perjury. It overrides the provisions of ss. 476 to 479. In sub-s. (6) it is expressly provided that no proceedings shall be taken under ss. 476 to 479 (inclusive) for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceedings may be taken under this section. The question to be seen, however, is if s. 479-A applies to the present case. Sub-section (1) of this section, so, far as relevant, lays down that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arpanch for one year and that Chhotey Lal, Sahayak Sarpanch looked after the work of the, Sarpanch during that period. Radhey Shyam, respondent, presented an application tinder s. 476, Cr. P. C. in the court of the District Magistrate also praying for the appellant's prosecution- under ss. 193 / 181 / 182, I.P.C. for having deliberately filed a false affidavit. The matter was inquired into by the District Magistrate and after going through the entire material placed before him he came to the conclusion that the explanation given by Chajoo Ram was quite plausible and it was doubtful to deduce from the material placed before him whether he had really acted as a Sarpanch of the Nyaya Panchayat or only as a Panch . The District Magistrate specifically referred to the files of some cases on which Radhey Shyam had relied in support of his allegation that the appellant had acted as Sarpanch but the District Magistrate was unable to uphold this allegation. Four receipts nos. 77 and 59 to 61 were also relied upon by Radhey Shyam in support of his allegation but here again the District Magistrate was unable to hold that the appellant had acted as Sarpanch. As a result of the prelimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear below the endorsement forwarding this report to the Panchayat Inspector for information and necessary action. This was explained by the appellant in his affidavit where he stated that the Secretary had inserted the word Sarpanch and on the appellant's objection to the use of this word, the Secretary bad replied that this was a formal matter. From this document also we do not think it is possible to hold that the appellant intended to act as Sarpanch on June 6. 1957. The prosecution for perjury should be sanctioned by courts ,only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavit is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently with,out 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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