Alok Verma, J.:— This is an enquiry under section 340 of Cr.P.C. The facts which necessitated this enquiry are that Professor Chintaman Malviya (hereinafter referred to as the ‘respondent’) is returned candidate from Lok Sabha Constituency No. 2, Ujjain (M.P.) in general election of Lok Sabha held in the month of March-April, 2014. An Election Petition was filed against the respondent challenging his election to Lok Sabha which was registered as Election Petition No. 33/2014. In this petition, notice was issued to the respondent bearing No. 1762 dated 12.08.2014. Notice was sent to the District Judge, Ujjain, for service upon the respondent. The notice was served by process server Shri Arun Bhalerao on 16.08.2014 personally on the respondent.
2. However, respondent remained absent before the Election Judge and, therefore, Election Petition filed against him proceeded ex-parte. Subsequent to this, he filed an application under Order 9 Rule 7 of CPC for setting aside the ex-parte order passed against him. In support of the application, he filed an affidavit stating therein that the notice was served on his staff while he was busy in the ongoing session of the Parliament. When he came back to Ujjain, he came to know about the notice when it was placed before him and thereafter, immediately, he proceeded to take necessary action for setting aside of the ex-parte order. When this application is filed by respondent, the applicant filed I.A. No. 1303/2015 under section 340 of Cr.P.C. stating therein that respondent made false statement in the affidavit and thereby he committed offence under section 193 of IPC and he further prayed that suitable action be taken against the respondent.
3. The Co-ordinate Bench of this Court to which the Election Petition was assigned, passed an order dated 24.03.2015 on the application. In para 8 and 9 of the order, the Co-ordinate Bench observed as under:—
(8) So far as the application of petitioner is concerned, prima facie it seems that the respondent No. 1 himself has received the notice of this petition on 16.08.2014 whereas, on oath he stated that he received the notice of this petition on 25.01.2015 through his employee. This controversy can be resolved only after the enquiry, therefore, the Principal Registrar of this Bench is directed to register a Misc. Criminal Case under section 340 of the Cr.P.C. against the respondent No. 1and initiate the enquiry and after making due enquiry if he finds that respondent NO. 1 has filed a false affidavit in support of I.A. No. 927/2015 then file a private complaint against respondent No. 1 before the competent Magistrate. Thus, the application (I.A. No. 1303/2015) is allowed.
(9) Reader is directed to send the photocopy of this order alongwith the original second copy of notice of respondent No. 1 and service report of process server in a sealed envelope for compliance of the order to Principal Registrar of this Bench. Whereas, the photocopy of the notice and service report of process server be kept with this record.
4. The enquiry was assigned to the Principal Registrar of this Bench of High Court. However, it was pointed out by the registry that under section 340 of Cr.P.C., enquiry should have been conducted by the Court itself and, therefore, by order dated 30.06.2015, this Court modified earlier order passed by the Co-ordinate Bench and directed the registry to place the matter before the Court for conducting enquiry.
5. During the enquiry, statements of process server Arun Bhalerao was recorded on 09.09.2015. He confirmed that he served notice bearing No. 1762 dated 12.08.2014 on the respondent personally and also respondent signed it before him. He was also cross examined by counsel for the respondent. In his statement, he also stated that on that day, another process server of Ujjain District Court, Bharat Singh Chouhan was also on beat on that particular day and he was with him when notice was served. He witnessed that notice was served personally on the respondent. Subsequently, statement of Bharat Singh Chouhan was also recorded and he confirmed in his statement that notice was served personally on the respondent.
6. After recording the statements and taking into consideration the served notice bearing No. 1762 dated 12.08.2014 and enclosed hukmnama, it is apparent that notice was served personally on the respondent while in the affidavit, he mentioned that notice was served on his staff.
7. Counsel for the respondent cited judgment of Hon'ble the Supreme Court in the case of Chhaju Ram v. Radhey Shyam reported in 1971 Law Suit (SC) 204. In para 7 of the Judgment, Hon'ble the Supreme Court observed here as under:—
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(7) 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 prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.
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8. It is to be seen whether, it is in the interest of justice to punish the respondent whether, such lapses on his part are immaterial and innocent.
9. Counsel for the respondent argues that it was unintentional mistake on the part of the respondent and, therefore, no action should be taken against him.
10. In my considered opinion, however, more cautious and responsible approach was expected from the respondent being representative of people and professor himself. He is expected to understand the consequences of not appearing before the Court of law and specially before the High Court. Therefore, in this case, lenient and sympathetic view is not called for. In this view of the matter, I find that prosecution for perjury should be initiated against the respondent.
11. The Principal Registrar of this Court is authorised under section 195(1)(b)(i) to file complaint in the concerning court of Magistrate. The Principal Registrar is directed to draft the complaint and place it before the Court for approval.