I am beginning to build respect for Justice J R Midha of Delhi High Cout. Few of his previous judgments are already covered on this site. Those refer to his decisions on making filing of income and assets affidavits mandatory in any matrimonial suit (divorce, RCR etc), so the the time of court and both parties can be saved in trying to find the level of income/assets of husband and wife, and need for maintenance of wives.
This recent judgment marks a departure from judiciary’s almost lack of concern for unscrupulous litigants and accusers from wasting time of courts, taxpayers’ money, and last but not the least of the accused party or defendants, depending on whether it’s a criminal or civil case.
There are multiple sections in Indian Penal Code (IPC) to punish false statements, fabricated/forged evidence, perjury etc; but rarely do such provisions are utilized to punish those abusing and misusing the judicial system. In the West, even well known celebrities and rich people have had to spend time in jail, pay fine etc for committing perjury (Martha Stewart, Jeffrey Archer, Lance Armstrong), but all those things are never seen in India, even though Indian law is supposedly derived out of English common law and case laws, and tries to evolve and learn from best of jurisprudence followed in democratic countries like UK and US. Regular news is repeated in media about lack of courts, judges’ vacancies, but hardly no one tries to find the root causes of why there is high pendency in Indian courts – one of them being almost zero consequences for filing frivolous, false cases, or making false statements in pleadings or during evidence. It’s good that a few judges are taking up such matters head-on – justice S N Dhingra of Delhi HC was another one who gave such bold and well-reasoned decisions – so standards of judicial decisions can be raised, and hopefully the (self-inflicted) curse of false and frivolous cases can be removed from Indian courts.
Note: The current judgment is regarding a landlord-tenant dispute. There is another news from September 2015 that Delhi HC has been evolving general guidelines to punish false cases under IPC 209, especially for landlord-tenant disputes: http://indianexpress.com/article/cities/delhi/file-false-claims-before-delhi-high-court-and-face-criminal-action/
The judgment is given below. Hope to do a brief analysis on IPC 209 etc at a later time.
Full judgment text below:
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 784/2010
nd
% Date of Decision : 22 January, 2016
HS BEDI ….. Appellant
Through : Mr. Suhail Dutt, Senior
Advocate with Mr. Azhar
Alam, Advocate.
versus
NATIONAL HIGHWAY
AUTHORITY OF INDIA ….. Respondent
Through : Mr. Rohit Jain, Advocate for
NHAI.
Mr. Siddharth Luthra, Senior
Advocate as amicus curiae with
Mr. Satyam Thareja, Advocate.
CORAM :-
HON’BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. In Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470,
J.S. Khehar, J. observed that the Indian judicial system is grossly
afflicted with frivolous litigation and ways and means need to be
evolved to deter litigants from their compulsive obsession towards
,
senseless and ill-considered claims. The Supreme Court discussed
the menace of frivolous litigation. Relevant portions of the said
judgment are as under:
RFA 784/2010 Page 1 of 99
“191. The Indian judicial system is grossly afflicted,
with frivolous litigation. Ways and means need to be
evolved, to deter litigants from their compulsive
obsession, towards senseless and ill-considered claims.
One needs to keep in mind, that in the process of
litigation, there is an innocent sufferer on the other side,
of every irresponsible and senseless claim. He suffers
long drawn anxious periods of nervousness and
restlessness, whilst the litigation is pending, without any
fault on his part. He pays for the litigation, from out of
his savings (or out of his borrowings), worrying that the
other side may trick him into defeat, for no fault of his.
He spends invaluable time briefing counsel and
preparing them for his claim. Time which he should have
spent at work, or with his family, is lost, for no fault of
his. Should a litigant not be compensated for, what he
has lost, for no fault?…
xxx xxx xxx
194. Does the concerned litigant realize, that the
litigant on the other side has had to defend himself, from
Court to Court, and has had to incur expenses towards
such defence? And there are some litigants who continue
to pursue senseless and ill-considered claims, to
somehow or the other, defeat the process of law. …”
2. The greatest challenge before the judiciary today is the
frivolous litigation. The judicial system in the country is choked with
false claims and such litigants are consuming Courts’ time for a
wrong cause. False claims are a huge strain on the judicial system.
Perjury has become a way of life in the Courts. False pleas are often
taken and forged documents are filed indiscriminately in the Courts.
The reluctance of the Courts to order prosecution encourage the
litigants to make false averments in pleadings before the Court.
Section 209 of the Indian Penal Code, which provides an effective
RFA 784/2010 Page 2 of 99
mechanism to curb the menace of frivolous litigation, has been
seldom invoked.
3. An important question of law of public interest relating to the
scope of Section 209 of Indian Penal Code has arisen for
consideration before this Court. Section 209 of the Indian Penal Code
provides that dishonestly making a false claim in a Court is an offence
punishable with punishment of imprisonment upto two years and fine.
Section 209 of the Indian Penal Code is reproduced hereunder: –
“ Section 209 Dishonestly making false claim in Court —
–
Whoever fraudulently or dishonestly, or with intent to injure
or annoy any person, makes in a Court of Justice any claim
which he knows to be false, shall be punished with
imprisonment of either description for a term which may
extend to two years, and shall also be liable to fine. ”
4. Background facts
4.1. The appellant let out property bearing No.B-529, New Friends
Colony to the respondent for a period of three years vide registered
th
th
lease deed dated 27 April, 1998. Three years’ period expired on 14
April, 2001. However, the parties, by exchange of letters, mutually
th
extended the lease upto 30 September, 2001.
th
4.2. Vide letter dated 24 September, 2001, the respondent
th
intimated the appellant that the suit property would be vacated on 30
September, 2001 and, therefore, the appellant may depute a
representative to take over the possession. However, the appellant did
not turn up to take the physical possession.
st
4.3. Vide letter dated 01 October, 2001, the respondent intimated
th
the appellant that the suit property had been vacated on 30
RFA 784/2010 Page 3 of 99
September, 2001 and once again requested the appellant to take over
the possession. However, the appellant kept on delaying the taking
over of the possession. The appellant finally took over the possession
th
of the suit property on 18 January, 2002.
4.4. The respondent claimed the refund of security deposit from the
appellant, who declined to refund the same on the ground that the
same had been adjusted against liquidated damages equivalent to
double the rent.
4.5. The respondent instituted a suit for recovery of the security
deposit. The Trial Court decreed the respondent’s suit which was
challenged by the appellant before this Court.
th
4.6. Vide judgment dated 14 May, 2015, this Court dismissed the
appeal. This Court held that the appellant made a false claim before
the Court and issued a show cause notice to the appellant to show
cause why a complaint be not made against him under Section 340
Cr.P.C. for making a false claim under Section 209 of the Indian
Penal Code.
th
4.7. Paras 14.1 and 14.4 of the judgment dated 14 May, 2015 are
reproduced hereunder:
“14.1 On careful consideration of the rival contentions
of the parties and applying the well-settled principles of law,
this Court is of the view that the tenant’s lease determined
th
on 30 September, 2001 when the tenant offered the
possession to the landlord, who deliberately chose not to
take the possession with the dishonest intention of
misappropriating the tenant’s security deposit and,
therefore, the possession is deemed to have been delivered
RFA 784/2010 Page 4 of 99
to the landlord who is not entitled to rent or mesne profits
from the tenant.
14.2 There is no merit in this appeal which is gross
abuse and misuse of the process of law. The appeal as well
as CM 19620/2012 are, therefore, dismissed with costs of
Rs.50,000/-. CM 1320/2013 is disposed of.
xxx xxx xxx
14.4 The tenant(sic.landlord) has made a false claim
which amounts to an offence under Section 209 of Indian
Penal Code and therefore, show cause notice is hereby
issued to him as to why the complaint be not made against
him under Section 340 of the Code of Criminal Procedure
for making a false claim under Section 209 of the Indian
Penal Code. ”
(Emphasis supplied)
th
4.8. On 19 May, 2015, the appellant tendered an unconditional
apology and sought discharge of the show cause notice issued by this
Court whereupon this Court accepted the unconditional apology and
discharged the show cause notice issued to the appellant subject to
further cost of Rs.50,000/- which has been deposited by the appellant.
However, the matter was kept pending for considering the scope of
Section 209 of the Indian Penal Code.
4.9. This Court appointed Mr. Sidharth Luthra, Senior Advocate, as
amicus curiae to assist this Court. Mr. Luthra, learned amicus curiae,
has made submissions with respect to the scope of Section 209 of the
Indian Penal Code.
4.10. Mr. Suhail Dutt, learned senior counsel for the appellant, has
made exhaustive submissions on the scope of Section 209 of the
Indian Penal Code. Mr. Dutt, learned senior counsel, has made
RFA 784/2010 Page 5 of 99
submissions giving history and object of Section 209 as well as the
corresponding provisions in Singapore, Pakistan, Myanmar and
Malaysia.
5. History and object of Section 209 IPC
th
5.1. On 15 June, 1835, the Governor General of India in Council
constituted Indian Law Commission to draft the Indian Penal Code.
The Commission comprised of Lord T.B. Macaulay, J.M. Macleod,
G.W. Anderson and F. Millett , who submitted their report to George
th
Lord Aukland Governor General of India on 14 October, 1837. The
,
report of the Commission has been published by Bengal Military
Orphan Press, Calcutta in 1837.
5.2. The Law Commission, in their report, proposed Clause 196
which made institution of any civil suit containing a false claim as an
offence. Clause 196 was eventually modified and enacted as Section
209 of the Indian Penal Code. Clause 196 of the report of the
Commission is reproduced hereunder:
“Clause 196
Whoever, fraudulently, or for the purpose of annoyance,
institutes any civil suit knowing that he has no just ground
to institute such suit, shall be punished with imprisonment
of either description for a term which may extend to one
year, or fine, or both
Explanation: It is not necessary that the party to whom
the offender intends to cause wrongful loss or annoyance
should be the party against whom the suit is instituted. ”
5.3. The Indian Law Commission, in Note G of their Report,
acknowledged that they were creating a new offence which had no
English precedent and they were motivated to criminalise false claims
RFA 784/2010 Page 6 of 99
because it tends to delay justice and compromise the sanctity of a
Court of justice as an incorruptible administrator of truth and a bastion
of rectitude. The primary objective of the provision was to deter the
filing of such claims. Relevant portion of Note G is reproduced
hereunder:
“The rules which we propose touching the offence of
attempting to impose on Court of Justice by false evidence
differ from those of the English law, and of the Codes which
we have had an opportunity of consulting. It appears to us, in
the first place, that the offence which we have designated as
the fabricating of false evidence is not punished with adequate
severity under any of the systems to which we refer. This may
perhaps be because the offence, in its aggravated forms, is not
one of very frequent occurrence in western countries. It is
notorious, however, that in this country the practice is
exceedingly common, and for obvious reasons. The mere
assertion of witness commands far less respect in India than
in Europe, or in the United States of America. In countries in
which the standard of morality is high, direct evidence is
generally considered as the best evidence. In England
assuredly it is so considered, and its value as compared with
the value of circumstantial evidence is perhaps overrated by
the great majority of the population. But in India we have
reason to believe that the case is different. Judge, after he has
heard transaction related in the same manner by several
persons who declare themselves to be eye-witnesses of it, and
of whom he knows no harm, often feels considerable doubt
whether the whole from beginning to end be not fiction, and is
glad to meet with some circumstance, however slight, which
supports the story, and which is not likely to have been
devised for the purpose of supporting the story.
We think this the proper place to notice an offence
which bears a close affinity to that of giving false evidence,
and which we leave, for the present, unpunished, only on
account of the defective state of the existing law of
procedure. We mean the crime of deliberately and
RFA 784/2010 Page 7 of 99
knowingly asserting falsehoods in pleading . Our opinions on
this subject may startle persons accustomed to that boundless
licence which the English law allows to mendacity in suitors.
On what principle that licence is allowed, we must confess
ourselves unable to discover. A lends Z money. Z repays it. A
brings an action against Z for the money, and affirms in his
declaration that he lent the money, and has never been
repaid. On the trial A’s receipt is produced. It is not
doubted, A himself cannot deny, that he asserted falsehood
in his declaration. Ought A to enjoy, impunity? Again: Z
brings an action against A for debt which is really due. A’s
plea is a positive averment that he owes Z nothing. The case
comes to trial; and it is proved by overwhelming evidence
that the debt is a just debt. A does not even attempt a
defence. Ought A in this case to enjoy impunity? If, in
either of the cases which we have stated, A were to suborn
witnesses to support the lie which he has put on the
pleadings, every one of these witnesses, as well A himself,
would be liable to severe punishment. But false evidence in
the vast majority of cases springs out of false pleading, and
would be almost entirely banished from the Courts if false
pleading could be prevented .
It appears to us that all the marks which indicate that
an act is proper subject for legal punishment meet in the act
of false pleading. That false pleading always does some
harm is plain. Even when it is not followed up by false
evidence it always delays justice. That false pleading
produces any compensating good to atone for this harm has
never, as far as we know, been even alleged. That false
pleading will be more common if it is unpunished than if it
is punished appears as certain as that rape, theft,
embezzlement, would, if unpunished, be more common than
they now are. It is evident also that there will be no more
difficulty in trying charge of false pleading than in trying
charge of false evidence. The fact that statement has been
made in pleading will generally be more clearly proved than
the fact that statement has been made in evidence. The
falsehood of statement made in pleading will be proved in
RFA 784/2010 Page 8 of 99
exactly the same manner in which the falsehood of
statement made in evidence is proved. Whether the accused
person knew that he was pleading falsely, the Courts will
determine on the same evidence on which they now
determine whether witness knew that he was giving false
testimony.
We have as yet spoken only of the direct injury produced
to honest litigants by false pleading. But this injury appears to
us to be only part, and perhaps not the greatest part, of the
evil engendered by the practice. If there be any place where
truth ought to be held in peculiar honor, from which
falsehood ought to be driven with peculiar severity, in which
exaggerations, which elsewhere would be applauded as the
innocent sport of the fancy, or pardoned as the natural
effect of excited passion, ought to be discouraged, that place
is Court of Justice. We object therefore to the use of legal
fictions even when the meaning of those fictions is generally
understood, and we have done our best to exclude them from
this Code. But that person should come before Court, should
tell that Court premeditated and circumstantial lies for the
purpose of preventing or postponing the settlement of just
demand, and that by so doing he should incur no punishment
whatever, seems to us to be state of things to which nothing
but habit could reconcile wise and honest men. Public opinion
is vitiated by the vicious state of the law. Men who, in any
other circumstances, would shrink from falsehood, have no
scruple about setting up false pleas against just demands.
There is one place, and only one, where deliberate untruths,
told with the intent to injure, are not considered as
discreditable and that place is Court of Justice. Thus the
authority of the tribunals operates to lower the standard of
morality, and to diminish the esteem in which veracity is held
and the very place which ought to be kept sacred from
misrepresentations such as would elsewhere be venial,
becomes the only place where it is considered as idle
scrupulosity to shrink from deliberate falsehood.
We consider law for punishing false pleading as
indispensably necessary to the expeditious and satisfactory
RFA 784/2010 Page 9 of 99
administration of justice, and we trust that the passing of
such law will speedily follow the appearance of the Code of
procedure. We do not, as we have stated, at present propose
such law, because, while the system of pleading remains
unaltered in the Courts of this country, and particularly in the
Courts established by royal charter, it will be difficult, or to
speak more properly, impossible to enforce such law. We
have, therefore, gone no further than to provide punishment
for the frivolous and vexatious instituting of civil suits,
practice which, even while the existing systems of procedure
remain unaltered, may, without any inconvenience, be made
an offence. The law on the subject of false evidence will, as it
appears to us, render unnecessary any law for punishing the
frivolous and vexatious preferring of criminal charges.”
(Emphasis supplied)
6. Scope of Section 209 of the Indian Penal Code
6.1 Ingredients of the offence
The essential ingredients of an offence under Section 209 are as
under:
(i) The accused made a claim;
(ii) The claim was made in a Court of Justice;
(iii) The claim was false, either wholly or in part;
(iv) The accused knew that the claim was false; and
(v) The claim was made fraudulently, dishonestly, or with
intent to injure or to annoy any person.
6.2 A litigant makes a ‘ claim ’ before a Court of Justice for the
purpose of Section 209 when he seeks certain relief or remedies from
the Court and a ‘ claim ’ for relief necessarily impasses the grounds for
obtaining that relief. The offence is complete the moment a false
claim is filed in a Court.
RFA 784/2010 Page 10 of 99
6.3 The word “ claim ” in Section 209 of the IPC cannot be read as
being confined to the prayer clause. It means the “ claim ” to the
existence or non-existence of a fact or a set of facts on which a party
to a case seeks an outcome from the Court based on the substantive
law and its application to facts as established. To clarify, the word
“ claim ” would mean both not only a claim in the affirmative to the
existence of fact(s) as, to illustrate, may be made in a plaint, writ
petition, or an application; but equally also by denying an averred fact
while responding (to the plaint/petition, etc.) in a written statement,
counter affidavit, a reply, etc. Doing so is making a “ claim ” to the
non-existence of the averred fact. A false “ denial ”, except when the
person responding is not aware, would constitute making a “ claim ” in
Court.
6.4 The word ‘ claim ’ for the purposes of Section 209 would also
include the defence adopted by a defendant in the suit. The reason for
criminalising false claims and defences is that the plaintiff as well as
the defendant can abuse the process of law by deliberate falsehoods,
thereby perverting the course of Justice and undermining the authority
of the law.
6.5 The words “ with intent to injure or annoy any person ” in
Section 209 means that the object of injury may be to defraud a third
party, which is clear from the Explanation to Clause 196 in the Draft
Code namely “It is not necessary that the party to whom the offender
intends to cause wrongful loss or annoyance should be the party
against whom the suit was instituted.”
6.6 In Queen-Empress v. Bulaki Ram, (1890) All WN1, the
RFA 784/2010 Page 11 of 99
plaintiff instituted a suit for recovery of Rs 88-11. In the course of
proceedings, the defendant produced a receipt from the plaintiff for
Rs 71-3-3. The plaintiff’s claim to the extent of Rs 71-3-3 was
dismissed but the decree was passed for the balance. The plaintiff was
subsequently charged with making a false claim. Straight J. held that
the Section 209 is not limited to cases where the whole claim made by
the accused is false. It applies even where a part of the claim is false.
The relevant portion of the judgment is reproduced hereunder:
“ The petitioner brought a suit against another person to
recover from that person a sum of Rs. 88-11, and in his plaint
he alleged that the whole of that amount was due and owing
from the defendant. In the course of the proceedings the
defendant produced a receipt purporting to have been made by
the plaintiff for a sum of Rs. 71-3-3. Both the Courts of first
instance and the appellate Court which subsequently heard the
appeal, were of opinion that the defendant satisfactorily
established that he had paid to the plaintiff the sum of Rs. 71-3-
3, and that to that extent the claim of the plaintiff was an untrue
and unjust one, and accordingly his suit was dismissed to that
extent, and the decree given him for the balance. The Munsif,
who tried the case, had an application made to him for sanction
for prosecution of this plaint for false verification of plaint and
also for dishonestly and fraudulently making a false claim, and
he sanctioned, prosecution under both sanctions. The learned
Judge in appeal, for reasons which are stated in his judgment,
and which I need not discuss, considers it unnecessary that the
prosecution should be maintained under s. 198, but he affirms
the sanction under s. 209 of the Indian Penal Code.
The contention urged before me on behalf of the petitioner
against that order is first, that s. 209 of the Indian Penal Code
has no application to the facts of the case, and secondly, that
taking all the circumstances together there is no case in respect
of which it is likely a conviction can be sustained. I think it
enough, with the exception of one remark I shall have to make,
RFA 784/2010 Page 12 of 99
to say that I am not trying, nor am I deciding upon the guilt or
otherwise of the person to be prosecuted. I have to determine
whether in my opinion there is prima facie material to warrant
the institution of his prosecution. How that prosecution will
proceed or what effect the evidence when produced to support
it will have I am unable to say, but there is sufficient prima
facie material to warrant prosecution. Mr Amiruddin has
contended that because a part of the petitioner’s claim was
held to be well founded and due and owing, therefore his
conduct and action does not fall within s. 209 of the Indian
Penal Code, and he says that section contemplates that the
whole claim and every piece of it must be false. I entirely
dissent from this view. As I put an illustration in the course of
argument, so I do now, that if that view were adopted, a man
having a just claim against another for Rs. 5, may make claim
for Rs. 1,000, the Rs. 995 being absolutely false, and he may
escape punishment under this section. The law never intended
anything so absurd. These provisions were made by those who
framed this most admirable Code, which I wish we had in
England, with full knowledge that this was a class of offences
very common in this country . We who sit in this Bench and try
civil cases know that this is so, and that most dishonest claims
are made by persons who thinking to place a judgment-debtor
in difficulty, repeat claims against him which are satisfied..”
(Emphasis supplied)
6.7 In Deputy Legal Remembrancer and Public Prosecutor of
,
Bihar and Orissa v. Ram Udar Singh AIR 1915 CAL 457, a suit for
recovery was dismissed as being false and malicious whereupon an
application for prosecution of the accused under Section 209 IPC was
filed before the Munsif who dismissed the application on the ground
of delay in making the application. The Division Bench of Calcutta
High Court held that mere delay cannot be a ground to dismiss the
application. The Division Bench further held that the refusal to grant a
RFA 784/2010 Page 13 of 99
sanction to prosecute has resulted in failure of justice. Relevant
portion of the said judgment is reproduced hereunder:-
“5. ……. The ground for refusing sanction in the
Courts below was solely that of delay. Doubtless in
many cases where there is delay by a person in
applying for the sanction to prosecute, the delay
may suggest a want of good faith on the part of the
applicant. The present case, however, is in
substance a prosecution undertaken by the
Government and mere delay cannot, therefore, be
taken as suggesting mala fides.
6. I think the reasons assigned by the lower Courts
for refusing to grant a sanction when they came to
the conclusion that the suit was false and malicious,
are insufficient and have occasioned a failure of
justice. I think the present Rule ought to he made
absolute and sanction should be granted to
prosecute the opposite party under Section 209 of
the Indian Penal Code. We accordingly sanction the
prosecution of Ram Udar Singh under Section 209
of the Indian Penal Code for having on the 10th
December 1912 dishonestly made a false claim in
Court, viz., in Suit No. 308 of 1912 in the second
Court of the Munsiff at Muzaffarpore against Naik
Lahera and Hira Labera.”
6.8 In Badri v. Emperor, AIR 1919 All 323, the Allahabad High
Court held that Section 209 has used the words ‘ Court of Justice ’ as
distinguished from a ‘ Court of Justice having jurisdiction’ . It is
immaterial whether the Court in which the false claim was instituted
had jurisdiction to try the suit or not. The relevant portion of the
judgment is reproduced hereunder:
“2. Now on the learned Judge’s finding, which is the
only finding with which I am concerned, these four
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persons fraudulently, dishonestly and with intent to
injure Badri, misrepresenting their residence, went to a
Court which they knew had no jurisdiction and obtained
by the use of the most dishonest methods decrees for
sums not due to them, and in one instance obtained the
imprisonment of Jagat for six weeks. It would have been
an extraordinary defect in the Indian Penal Code if such
acts could pass unpunished, because the Court had no
jurisdiction, but I see no reason to suppose that the law
contains this defect. The words in Section 209 are “a
Court of Justice” not “a Court of justice having
jurisdiction in the case.” If a person brings a claim in a
Court of justice which has no jurisdiction the case falls
under Section 209 in my opinion, and similarly, if he
obtains a decree fraudulently for a sum of not due, the
case will fall under Section 210, whether the Court had,
or had not, power to pass the decree. ”
(Emphasis supplied)
6.9 In Ramnandan Prasad Narayan Singh v. Public Prosecutor,
Patna, (1921) 22 Cr LJ 467, the Patna High Court held that mere
dismissal of the plaintiff’s claim would not justify sanction under
Section 209 of the Indian Penal Code. A mere proof that the accused
failed to prove his claim in the civil suit or that Court did not rely
upon his evidence on account of discrepancies or improbabilities is
not sufficient. The Court held that the plaintiff may have over-
estimated his case but that will not necessarily show that he was
making a false claim. Relevant portion of the said judgment is
reproduced hereunder: –
“The case was, therefore, decided upon the question of
onus, which was thrown upon the petitioner by reason of
the Survey entries. It was not decided that the claim of
the plaintiffs was false. Therefore, the decision in the
RFA 784/2010 Page 15 of 99
former case does not at all show that the claim of the
plaintiffs, either in those eight suits or in the present
ones, was necessarily false, nor does it show that the
claim was in bad faith and not bona fide. As the learned
Judge has put it, he may have over-estimated his case
and even may have claimed more than what was his
legal due, but that will not necessarily show that he was
making a false claim, and unless there was evidence
that the claims made in those suits were false section
209, Indian Penal Code, has no application. The mere
dismissal of the plaintiff’s claim would not justify
sanction under section 209, Indian Penal Code .”
(Emphasis supplied)
6.10 In National Insurance Company Limited v. Babloo Pal and
Ors . (1999) ACJ 388, two persons impersonated themselves as son
and daughter of the deceased victim of a road accident to claim
compensation under Section 166 of the Motor Vehicles Act, 1988.
The Madhya Pradesh High Court directed the Claims Tribunal to
conduct an inquiry into the matter. From the inquiry report, it was
clear that the claimants were not the son and daughter of the deceased
and had impersonated to claim compensation. The High Court
directed the Registrar to initiate proceeding for prosecution of the two
litigants and their lawyer under Section 207, 209, 419 and 420 of the
Indian Penal Code. Relevant portion of the judgment is reported
hereunder :-
“5. After considering objection and the report of
the Enquiry Officer, it is apparent that Babloo Pal
had impersonated himself as son of deceased
Patiram, whereas lady Sukhi, sister of Babloo Pal
had impersonated herself as Sukhi, though her
name is Ramko.
RFA 784/2010 Page 16 of 99
6. Babloo Pal has moved an application, after the
award, in this inquiry, claiming himself to be
adopted son of the deceased Patiram. These facts
were not mentioned by him in the application for
claim filed under Section 166 of Motor Vehicles Act.
From entire proceedings, it is apparent that plea of
adoption is an after-thought. The adoption was also
not proved by Babloo Pal. There is no evidence on
record to demonstrate that there was any ceremony
of give and take of Babloo Pal by natural parent to
adoptive father. The Claims Tribunal has rightly
held that Babloo Pal was not adopted son and he
had misrepresented before the Tribunal in getting
the claim. Similar finding is recorded that claimant
Sukhi in the application is not Sukhi but her name is
Ramko and she had impersonated herself as Sukhi.
The court also found that complainant is the real
daughter of Patiram. The conduct of Mr. N.D.
Singhal, Advocate, was also considered and from
going through the conduct of Mr. N.D. Singhal, it
appears that Mr. N.D. Singhal himself was also
involved in playing fraud with the court, and was in
a position to get an award in favour of fictitious
persons.
7. It is really distressing that an advocate, who is an
officer of the court, has neglected to perform his
duty. It is the duty of an advocate to be fair in the
court and should apprise the court about the correct
facts. He being officer of the court is duty bound to
assist the court in administration of justice, but the
act of Mr. N.D. Singhal was unbecoming of an
advocate and he has denied the real claimant of her
legitimate right in receiving compensation. The
objections of claimants and of Mr. N.D. Singhal are
considered. After considering the entire evidence on
record, we are of the opinion that the findings
recorded by the Claims Tribunal are proper, which
have been recorded after appreciating the evidence
RFA 784/2010 Page 17 of 99
on record. Therefore, the report is accepted. As
ordered in M.C.C. No. 302 of 1996, the Registrar is
directed to report in order to initiate proceedings
for prosecution against Babloo Pal, Ramko (who
impersonated herself as Sukhi) and Mr. N.D.
Singhal, Advocate under the provisions of Sections
207, 209, 419 and 420 of Indian Penal Code. It is
further ordered that notice of criminal contempt
for playing fraud upon the court be also issued to
Mr. N.D. Singhal, Advocate, Babloo Pal and
Ramko by registering separate proceeding and for
their appearance in the court on 24.10.1997.
8. The grave misconduct is committed by Mr. N.D.
Singhal, Advocate. Therefore, a copy of this order
be sent to the State Bar Council at Jabalpur for
appropriate action against Mr. N.D. Singhal,
Advocate.
9. The amount of compensation paid to Babloo Pal
and Ramko be recovered from them. Since Mr. N.D.
Singhal, Advocate, was instrumental in getting the
fraudulent claim, he is also jointly and severally
liable to refund the amount of compensation
received by the claimants. It is, therefore, ordered
that the compensation with interest paid to
aforesaid persons, shall be recovered from Babloo
Pal, Ramko and Mr. N.D. Singhal, jointly and
severally with interest at the rate of 14 per cent per
annum from the date of payment till realization.”
(Emphasis supplied)
7. Recent cases of Delhi High Court in which Section 209 IPC
has been invoked
th
7.1. In Surajpal Singh v. Punjab and Sind Bank (Order dated 10
April, 2015 in RFA No.110/2015), the appellant took a loan from
Punjab and Sind Bank by mortgaging his immovable property. The
bank instituted two suits for recovery of Rs.2,09,201.65 against the
RFA 784/2010 Page 18 of 99
appellant in 1961 and 1963. During the pendency of these suits, the
appellant compromised the matter with the bank. The terms of the
settlement were that the mortgaged property was given by the
appellant to the bank in full and final settlement of the loan amount.
th
The Sub-Judge, First Class recorded the settlement on 09 June, 1965
and passed a comprise decree which recorded that the appellant has
transferred the property to the bank, possession has been delivered to
the bank, the bank has become the full owner thereof and the
th
appellant has no right or interest therein. On 28 October, 2014 i.e.
after about 50 years of the compromise decree, the appellant instituted
th
a suit for cancellation of the decree dated 09 June, 1965. The suit
was dismissed by the Trial Court with costs of Rs.50,000/- for filing a
frivolous and time barred suit after almost half century. The appellant
th
approached this Court in appeal. On the first date of hearing i.e. 10
April, 2015, this Court issued a show cause notice to the appellant to
show cause as to why a complaint be not made against him under
Section 340 of the Code of Criminal Procedure for an offence under
Section 209 of the Indian Penal Code. Relevant portion of the order
th
dated 10 April, 2015 is reproduced hereunder:
“1. The appellant has challenged the impugned judgment
rd
dated 3 November, 2014 whereby the learned Trial Court has
dismissed his suit with cost of Rs.50,000/- for filing a frivolous
and time barred suit without any justified ground after a lapse
of almost half century.
th
2. On 28 October, 2014, the appellant instituted a suit for
th
cancellation of a decree dated 9 June, 1965 passed by the
Sub-Judge First Class in Suit No.63/1963 and 495/1961.
xxx xxx xxx
RFA 784/2010 Page 19 of 99
4. The reading of the decree dated 9th June, 1965 makes it
clear that in a suit for recovery of Rs.2,09,201.65 with interest,
the appellant compromised the matter with the bank and the
mortgaged properties were transferred in favour of the bank.
The appellant delivered the possession of the property also to
the bank. The Court recorded the compromise and declared
that bank has become full owner of the property and the
appellant has no right, title or interest therein.
5. Learned counsel for the appellant submits that there is no
valid transfer of the property in favour of the Bank and
therefore, the appellant continues to be the owner. Learned
counsel further submits that the bank has not become the owner
of the property and therefore, the decree is liable to be set
aside.
6. This Court is of the prima facie view that the appellant
has made a false claim which amounts to an offence under
Section 209 of the Indian Penal Code.
7. Before hearing the matter further, a show cause notice
is issued to the appellant as to why a complaint be not made
against him under Section 340 CrPC for an offence under
Section 209 of the Indian Penal Code.
8. The appellant present in Court accepts the show cause
notice and seeks time to file the reply. Let the reply to the show
cause notice be filed within one week from today.”
(Emphasis supplied)
th
On 29 May, 2015, the appellant sought permission to
withdraw the appeal and tendered unconditional apology which was
accepted and the appeal was dismissed with costs.
th
7.2. In Gagan Myne v. Ritika Bakshi (order dated 30 April, 2015
in RFA 125/2015), the tenant challenged a decree for possession on
the ground that the period of two years of the lease had not expired
and upto date rent and post-dated cheques upto the expiry of two years
period had been given to the landlord whereupon this Court issued
RFA 784/2010 Page 20 of 99
notice to the landlord and in the meantime, stayed the execution of the
impugned decree. The landlord approached this Court for vacation of
the stay on the ground that the tenant was in arrears of more than
Rs.11 lakh whereupon the tenant admitted being in arrears. This
Court dismissed the appeal and issued a show cause notice to the
tenant as to why a complaint be not made against him under Section
340 of the Code of Criminal Procedure for making a false claim under
th
Section 209 IPC. Relevant portion of the order dated 30 April, 2015
is reproduced hereunder:
“1. The appellant has challenged the impugned decree for
th
possession dated 24 December, 2014 in respect of first floor of
property D-415, Defence Colony, New Delhi – 110024 on the
ground that the appellant had taken the subject property on
th
lease for a period of two years from 18 September, 2013 to
th
17 September, 2015 at a monthly rent of Rs.85,000/- to be
increased by 10% after 12 months apart from maintenance
th
charges of Rs.10,000/- vide registered lease deed dated 18
September, 2013.
th
2. This appeal was listed for admission on 27 February,
2015 when it was submitted that the appellant has given post-
th
dated cheques for the entire period of lease upto 17
September, 2015 to the respondent. On the basis of the
submissions made by the appellant, this Court issued the notice
th
to the respondent returnable on 13 May, 2015 and stayed the
execution of the impugned judgment and decree.
3. The respondent has approached this Court by filing CM
7659/2015 for vacation of the ex parte stay order on the ground
that the appellant has not paid the rent and maintenance
th
charges of the suit property since 18 June, 2014 and the
arrears of rent and maintenance are more than Rs.11,00,000/-.
Learned counsel for the respondent submits that the appellant
has made a false claim before this Court to obtain an ex parte
stay order against the decree for possession. Learned counsel
RFA 784/2010 Page 21 of 99
for the respondent further submits that the appellant did not
th
serve the copy of the order dated 27 February, 2015 on the
respondent.
4. The appellant is present in Court and has handed over an
undertaking in which he has admitted the arrears of rent as
Rs.7,44,000/-. The appellant seeks time to handover the vacant
and peaceful possession of the suit property to the respondent
st
on 31 May, 2015. However, the appellant is not prepared to
pay the arrears of rent and maintenance charges. He further
submits that at present he does not have the means to pay and
he seeks time to give a schedule for payment of amount in
instalments.
5. On careful consideration of the contentions raised by
the appellant, this Court is of the view that the appellant has
made a false claim before this Court by concealing that he is
in arrears of rent and maintenance charges to the tune of
more than Rs.7,00,000/- and has played fraud to this Court to
obtain an ex parte order from this Court.
6. The appeal and the pending applications are therefore
dismissed with cost of Rs.50,000/-.
7. A show cause notice is hereby issued to the appellant
why a complaint be not made against him under Section 340
Cr.P.C. for filing a false claim under Section 209 of the
Indian Penal Code. The appellant present in Court accepts
notice. The reply to the show cause notice be filed within one
week from today.
8. List for considering the appellant’s reply to the show
th
cause notice on 8 May, 2015.
9. The appellant shall remain present in Court on the next
date of hearing.”
(Emphasis supplied)
th
On 20 May, 2015, the appellant tendered unconditional
apology, which was accepted subject to costs.
7.3. In Seema Thakur v. Union of India , 223 (2015) DLT 132 the
RFA 784/2010 Page 22 of 99
plaintiff, after having sold an immovable property, instituted a
frivolous suit to claim the same. This Court dismissed the suit and
issued notice under Section 340 Cr.P.C. to the plaintiff as well as her
attorney to show cause as to why they be not prosecuted under Section
th
209 of the Indian Penal Code. Relevant portion of the order dated 19
August, 2015 is reproduced hereunder:
“19. Considering the facts of the present case I am of
the opinion that the plaintiff has come to this Court with a false
case. Section 209 of the Indian Penal Code, 1860 (IPC)
provides that when a person comes to court with a false case,
such person is liable to be punished by imprisonment for a
period upto two years in addition to fine. I therefore issue
notice to the plaintiff as also to her attorney, Sh. Vijay Kapoor
under Section 340 of the Code of Criminal Procedure, 1973
(Cr. P.C) to show cause as to why a criminal case be not
lodged against the plaintiff and her attorney, Sh. Vijay Kapoor
by the Registrar General of this Court or by the defendant no.6
in terms of permission to be granted by this Court, under
Section 209 IPC….”
8. Cognizance of Offence under Section 209, Indian Penal Code
The offence under Section 209 is non-cognisable, non-
compoundable and triable by a Magistrate of the first class. Under
Section 195 of the Code of Criminal Procedure read with Section 340
of the Code of Criminal Procedure, the Court before which the
offence under section 209, IPC is committed, or of some other Court
to which it is subordinate, has to make a complaint in writing to the
Magistrate.
8.1. In Sanjeev Kumar Mittal v. State , 174 (2010) DLT 214, this
Court examined the scope of Section 340 of the Code of Criminal
Procedure. The relevant portion of the said judgment is reproduced
RFA 784/2010 Page 23 of 99
hereunder:
“6.6. If there is falsehood in the pleadings (plaint, written
statement or replication), the task of the Court is also
multiplied and a lis that could be decided in a short time, then
takes several years. It is the legal duty of every party to state in
the pleadings the true facts and if they do not, they must suffer
the consequences and the Court should not hold back from
taking action.
xxx xxx xxx
6.13. A party, whether he is a petitioner or a respondent, or a
witness, has to respect the solemnity of the proceedings in the
court and he cannot play with the courts and pollute the stream
of justice. It is cases like this, with false claims (or false
defences) which load the courts, cause delays, consume judicial
time and bring a bad name to the judicial system. This case is a
sample where the facts are glaring. Even if they were not so
glaring, once falsehood is apparent, to not take action would be
improper.
6.14. The judicial system has a right and a duty to protect itself
from such conduct by the litigants and to ensure that where
such conduct has taken place, the matter is investigated and
reaches its logical conclusion and depending on the finding
which is returned in such proceedings, appropriate punishment
is meted out.
6.16. In an effort to redeem the situation, not only realistic
costs and full compensation in favour of the winning party
against the wrongdoer are required, but, depending on the
gravity of the wrong, pe
nal action against the wrongdoers is also called for. Unless the
judicial system protects itself from such wrongdoing by taking
cognizance, directing prosecution, and punishing those found
guilty, it will be failing in its duty to render justice to the
citizens . Litigation caused by false claims and defences will
come to be placed before the courts, load the dockets and delay
delivery of justice to those who are genuinely in need of it.
…………..
RFA 784/2010 Page 24 of 99
8. False averments in pleadings are sufficient to attract
Chapter XI of the Indian Penal Code:
xxx xxx xxx
8.7. Making false averment in the pleading pollutes the stream
of justice. It is an attempt at inviting the Court into passing a
wrong judgment and that is why it must be treated as an
offence.
8.8. Where a verification is specific and deliberately false, there
is nothing in law to prevent a person from being proceeded for
contempt. But it must be remembered that the very essence of
crimes of this kind is not how such statements may injure this or
that party to litigation but how they may deceive and mislead
the courts and thus produce mischievous consequences to the
administration of justice. A person is under a legal obligation
to verify the allegations of fact made in the pleadings and if he
verifies falsely, he comes under the clutches of law.
8.9. Consequently, there cannot be any doubt that if a statement
or averment in a pleading is false, it falls within the definition
of offence under Section 191 of the Code (and other
provisions). It is not necessary that a person should have
appeared in the witness box. The offence stands committed
and completed by the filing of such pleading. There is need
for the justice system to protect itself from such wrongdoing
so that it can do its task of justice dispensation.
10. Expedient in the interests of justice under section 340 Cr.
P.C.:
10.1. When an inquiry for having committed an offence as listed
in Section 195 Cr.P.C. is proposed to be launched, Section 340
Cr.P.C. provides for the procedure. One of the requirements in
sub-section (1) is that the “ court is of opinion that it is
expedient in the interests of justice that … ” When is it
expedient in the interests of justice?
10.2. A common thread that can be culled out from these
decisions is that perjury, which includes false averments in
pleadings, is an evil to eradicate which every effort must be
made. The reluctance of the courts to order prosecution
RFA 784/2010 Page 25 of 99
encourage parties to make false averments in pleadings before
the Court and produce forged documents.
xxx xxx xxx
10.4 The gravity of the offence, the substantiality of the
offenders, the calculated manner in which the offence appears
to have been committed and pernicious influence such conduct
will have in the working of the Courts and the very faith of the
common man in Courts and the system of the administration of
justice, all have been reckoned in arriving at a conclusion that
action under Section 340 is fully justified.
11. Preliminary Inquiry under Section 340 Cr.P.C.
11.1. Another question, one of procedure, is about a
preliminary inquiry. Section 340(1) Cr.P.C. uses the word
“ such court may, after such preliminary inquiry, if any, as it
thinks necessary ”.
xxx xxx xxx
11.3. The preliminary inquiry in the second part of Section 340
is not mandatory. The use of the words ‘if any’ is clearly
indicative. This is so because situations can be such where
there is strong suspicion, but there is not sufficient evidence to
return a finding (although still prima facie) that it appears to
have been committed. And there can be cases where there is
sufficient material on record to return such a finding. In the
former case, preliminary inquiry is necessary, in the latter case,
it is not.
xxx xxx xxx
11.5. If the facts are sufficient to return a finding that an
offence appears to have been committed and it is expedient in
the interests of justice to proceed to make a complaint under
Section 340 Cr.P.C., the Court need not order a preliminary
inquiry. But if they are not and there is suspicion, albeit a
strong one, the Court may order a preliminary inquiry. For
that purpose, it can direct the State agency to investigate and
file a report along with such other evidence that they are able
to gather.
xxx xxx xxx
RFA 784/2010 Page 26 of 99
11.6. Ordering of the preliminary inquiry also includes
investigation by a State agency where the nature is such that a
private party in civil proceedings could not possibly gather and
place before the Court those facts, documents, etc. Many times,
there can be suspicion, strong suspicion, or even suspicion that
borders on conviction, and it is expedient in the interests of
justice to proceed to lodge a complaint, but there may be no
sufficient legal evidence on the record at that time to so
proceed.
12. Case law on ordering investigation by the Police
12.1. The next question is whether as part of the Preliminary
Inquiry under Section 340 Cr.P.C., an investigation by the
Police or any other State Agency can be ordered…………”.
12.2. Thus, the law is settled that the Court has a power to
direct the police to investigate and report, which power has
been readily exercised by the Courts whenever they felt that the
facts of the case so warranted.
12.3. Often, the facts are such on which a private party cannot
be expected to itself investigate, gather the evidence and place
it before the Court. It needs a State agency exercising its
statutory powers and with the State machinery at its command
to investigate the matter, gather the evidence, and then place a
report before the Court along with the evidence that they have
been able to gather. Moreover, the offence(s) may be a stand-
alone or as a carefully devised scheme. It may be by a single
individual or it may be in conspiracy with others. There may be
conspirators, abettors and aiders or those who assisted, who
are not before the Court, or even their identity is not known.
12.4. Where the facts are such on which the Court (or a
subordinate officer) can conduct the inquiry, it will be so
conducted, but where the facts are such which call for tracing
out other persons involved, or collection of other material, or
simply investigation, it is best carried out by a State agency.
The Court has not only the power but also a duty in such cases
to exercise this power. However, it may be clarified that a party
cannot ask for such direction as a matter of routine. It is only
RFA 784/2010 Page 27 of 99
when the Court is prima facie satisfied that there seems to have
been wrongdoing and it needs investigation by the State agency
that such a direction would be given.”
(Emphasis supplied)
9. Comparative analysis of law in other countries .
9.1. Section 209 of Penal Code of Singapore, Pakistan, Malaysia,
Myanmar and Brunei are same as Section 209 of the Indian Penal
Code.
Singapore
9.2. In Bachoo Mohan Singh v. Public Prosecutor (2010) SGCA
25, the Singapore Supreme Court exhaustively examined the scope of
Section 209 of the Singapore Penal Code, which is similar to Section
209 of Indian Penal Code. In that case, the appellant Bachoo Mohan
Singh, an Advocate and solicitor of 36 years’ standing, was convicted
of abetting his client to dishonestly make a false claim in Court under
Section 209 of the Singapore Penal Code in a suit for damages on
behalf of sellers of an immovable property against the buyers in which
a false claim was made with respect to the sale price of the flat as $
4,90,000/- instead of $ 3,90,000/- to facilitate illegal cash back of $
1,00,000/-. It was alleged that the appellant was aware of the sale
price of the flat being $ 3,90,000/-. The suit was discontinued at the
initial stage itself whereupon the prosecution was launched against the
counsel for abetting his client to make a false claim in the Court. The
District Judge convicted the appellant under Section 209 of the
Singapore Penal Code and sentenced him to three months’
imprisonment. The District Judge relied upon the judgment of
Queen-Empress v. Bulaki Ram (supra). The District Judge held that
RFA 784/2010 Page 28 of 99
the appellant was aware that the agreed sale price of the flat in
question was $ 3,90,000/- whereas a false claim of $ 4,90,000/- was
made by the appellant. The appellant challenged the conviction and
sentence before the High Court. The High Court allowed the appeal
on sentence in part and reduced the three months’ sentence to one
month imprisonment with fine of $1,00,000. The High Court also
relied upon Queen-Empress v. Bulaki Ram (supra) and held that
Section 209 of the Penal Code would apply to cases where whole
claim was false as well as cases where the claim was false in a
material particular whether by way of a outright lie, deliberate
omission or suppression of material facts. The High Court further
held that the offence was complete once the claim was filed in Court.
The High Court referred to the questions of law of public interest with
respect to the scope of Section 209 of the Penal Code to the Supreme
Court. The Singapore Supreme Court examined the scope of Section
209 of the Penal Code and set aside the conviction by a majority of
2:1. The brief introduction given in paras 1 and 2 of the judgment are
reproduced hereunder:
“1 In these criminal references, this court has to consider
questions of law of public interest relating to how s 209 of the
Penal Code (Cap 224, 1985 Rev Ed) (“the PC”) should be
construed and the scope of lawyers’ duties to verify their
client’s instructions. These criminal references arise from the
conviction of Bachoo Mohan Singh (“BMS”), an advocate and
solicitor of some 36 years’ standing, in the Subordinate Courts
by a district judge (“the District Judge”) ( see Public
Prosecutor v Bachoo Mohan Singh [2008] SGDC 211 (“BMS
(No 1)”)). BMS had been convicted of abetting (by aiding) his
client to dishonestly make a false claim in court, under s 209
RFA 784/2010 Page 29 of 99
(read with s 109) of the PC…………..
xxx xxx xxx
BMS’s conviction was subsequently affirmed by a High Court
judge (“the High Court Judge”) (see Bachoo Mohan Singh v
Public Prosecutor [2009] 3 SLR(R) 1037 (“BMS (No 2)”)).
xxx xxx xxx
2 According to BMS’s counsel, this matter has the dubious
distinction of being the first known case in the
Commonwealth’s legal annals where a lawyer has been
convicted of abetting his client in the making of a false claim.
This is also the first known case in Singapore involving a
prosecution in relation to s 209 of the PC even though this
provision has been in force in Singapore for well over a
century. In India, no lawyer appears to have ever been
prosecuted in connection with such an offence under s 209 of
the Penal Code 1860 (Act 45 of 1860) (India) (“the Indian
Penal Code”) (the progenitor to s 209 of the PC
(see [54] below)) since the Indian Penal Code was first
enacted. ”
(Emphasis supplied)
9.3. The Court formulated the questions of law ( paras 29 & 30 ) of
public interest and the issues considered by the Supreme Court ( para
40 ), which are reproduced hereinunder:
“29. The five questions of law of public interest raised
by BMS will, for convenience, be referred to, respectively, as
“BMS’s Question 1”, “BMS’s Question 2”, “BMS’s
Question 3”, “BMS’s Question 4”, and “BMS’s Question 5”.
They are as follows:
(a) Section 209 of the [PC] makes it an offence for a person
to (i) dishonestly (ii) make(iii) before a court of
justice (iv) a claim which he (v) knows to be (vi) false. What is
the meaning of each these words and the cumulative purport of
this provision in the Singapore context? [ie, BMS’s Question 1]
(b) In what circumstances would a solicitor be held to have
acted dishonestly (causing wrongful gain or wrongful loss, as
RFA 784/2010 Page 30 of 99
defined in s 24 of the [PC] since if he obtains judgment for a
client in an action for payment of a debt or for damages, it is
bound to cause a loss to the defendant. When is the gain or loss
wrongful or unlawful for this purpose? [ie, BMS’s Question 2]
(c) In what circumstances is the offence committed: at the
point of the filing of the statement of claim or defence in court?
[ie, BMS’s Question 3]
(d) Can a claim before a court ever be held as false if the
defendant settles the claim in whole or in part before the claim
is tried in court, or if the defendant submits to judgment to the
whole or part of the claim? [ie, BMS’s Question 4]
(e) In what circumstances ought a solicitor decline to accept
and/or doubt his client’s instructions before filing pleadings
considering that a solicitor has no general duty imposed on him
to verify his client’s instructions? [ie, BMS’s Question 5]
30. The Prosecution’s questions of law of public
interest are as follows:
Question 1
If an advocate and solicitor files a statement of claim in court
on behalf of his client with the knowledge that the claim is
based on facts which are false; and that his client was dishonest
in making the false claim, does he commit an offence under
section 209 read with section 109 of the [PC]?
Question 2
If the answer to question 1 is in the affirmative, would he still
have committed an offence if he was only acting on his client’s
instructions?
xxx xxx xxx
Overview of the issues
40. I have already set out the questions of law of
public interest raised to this court above (at [29]–[30]) and
will not repeat them here. It is immediately apparent that
BMS’s Question 1 (see [29] above) straddles four issues
concerning how s 209 should be construed. The issues are as
follows:
RFA 784/2010 Page 31 of 99
(a) The meaning of “claim”;
(b) The meaning of “makes” a claim;
(c) The meaning of making a claim that one “knows to be
false”; and
(d) The meaning of “court of justice”.
BMS’s Question 3 and BMS’s Question 4 will be discussed
under (a) and (c) respectively. BMS’s Question 2 and BMS’s
Question 5, in my view, can be discussed together; they relate
to one overarching issue, viz, a solicitor’s liability for abetting
the making of a false claim. I should add that my observations
on, and answers to, the questions are made for the purpose of
clarifying the ambit of s 209 of the PC, and they should
therefore be read in that context.”
9.4. V.K. Rajah, J. (in his majority judgment) held as under: –
“ Conclusion
137. I would answer the questions of law of public interest
posed by BMS (see [29] above) as follows:
(a) BMS’s Question 1:
(i) A “claim” for the purposes of s 209 refers to the
relief or remedy sought from the court, as well as
the grounds for obtaining that relief or remedy. A
“claim” may also be said to be a cause of action.
(ii) In writ actions, a litigant “makes” a claim at the
point in time when pleadings have closed, after the
statement of claim and reply (if any) (for the
plaintiff) and the defence (for the defendant) is
filed. For originating summons actions, a litigant
“makes” a claim when his affidavit evidence is
filed in court as directed.
(iii) To succeed under s 209 of the PC, the
Prosecution must establish that the claim was
“false” beyond a reasonable doubt and that the
accused knew that it was false. A claim is “false” if
it is made without factual foundation. A claim is
not “false” if it involves a question of law. The test
RFA 784/2010 Page 32 of 99
for falsity is not considered by reference to the
pleadings in isolation, but must take into account
the wider factual context; this necessarily includes
facts not revealed in the pleading itself.
(iv) A “court of justice” for the purposes of s 209 of
the PC refers to the legal institution or body where
disputes are adjudicated.
(b) BMS’s Question 2: This question does not directly affect
the outcome of the proceedings below. In my view, a solicitor
acts dishonestly if, having actual knowledge about the falsity
of a client’s claim (or after he subsequently acquires that
knowledge), he proceeds to make that claim in court and
thereby allows the client to gain something that he is not
legally entitled to, or causes the adversary to lose something
which he is legally entitled to.
(c) BMS’s Question 3: In writ actions, a litigant “makes” a
claim at the point in time when pleadings have closed, after
the statement of claim and reply (if any) (for the plaintiff) and
the defence (for the defendant) is filed. For originating
summons actions, a litigant “makes” a claim when his
affidavit evidence is filed in court as directed.
(d) BMS’s Question 4: If an action is settled before the
close of pleadings (for actions commenced by writs) or before
affidavits are filed as directed (for actions commenced by
originating summonses), no “claim” is “made” for the
purposes of s 209 of the PC. Where only part of the action is
settled or the defendant submits only to part of the action, a
claim would be “made” at or after the close of pleadings stage
or the filing of affidavits, as the case may be. Whether that
claim is “false” will depend on the facts of the case. Here, it
must be borne in mind that not all overstated or exaggerated
claims are false.
(e) BMS’s Question 5: A solicitor should decline to accept
instructions and/or doubt his client’s instructions if they
plainly appear to be without foundation (eg, lacking in logical
and/or legal coherence). A solicitor is not obliged to verify his
client’s instructions with other sources unless there is
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compelling evidence to indicate that it is dubious. The fact
that the opposing parties (or parties allied to them) dispute the
veracity of his client’s instructions is not a reason for a
solicitor to disbelieve or refuse to act on those instructions,
and a solicitor should not be faulted if there are no reasonable
means of objectively assessing the veracity of those
instructions.”
9.5. The Court considered the report of Indian Law Commission and
discussed the object of Section 209 as under:-
“55. It follows that s 209 of the PC was clearly intended to
deter the abuse of court process by all litigants who make false
claims fraudulently, dishonestly, or with intent to injure or
annoy. The essence of this provision is entirely consistent with
the desire of the Indian Law Commissioners to preserve the
special standing of a court of justice and safeguard the due
administration of law by deterring the deliberate making of
false claims in formal court documents. I should perhaps
round up this discussion on the objectives of s 209 of the PC by
pointing out that in India it is the court and not the Public
Prosecutor who initiates prosecutions under the equivalent
provision. At the end of the day, it can be said with some force
that it is the court that is best positioned to assess when its
processes have been misused or abused. The court is also well-
equipped to deal with litigants and/or solicitors who abuse its
processes through a variety of well established judicial
remedies including adverse personal costs orders and/or
contempt proceedings. In the case of advocates and solicitors,
disciplinary proceedings will swiftly follow serious infractions
of professional responsibilities. This may explain why other
common law jurisdictions have not seen a compelling need to
criminalise abuses of the pleading process.
56. I summarise. It is imperative to firmly bear in mind the
objectives for which the Legislative Council enacted s 209 of
the PC. It was clearly not the intention of the Legislative
Council or the object of s 209 of the PC to alter or even
criminalise, by a side wind, well-established civil pleading
practices – this much is obvious from the fact that Singapore
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has, unlike India, all along incorporated and preserved the
architecture of contemporary English civil procedure rules.
57. Therefore, in purposively construing the constituent
elements of s 209 of the PC (in particular the terms “claim”,
“makes … any claim”, and “knows to be false”),
consideration should be given to the Legislative Council’s (and
now Parliament’s) intention to prevent the abuse of court
process by the making of false claims in the context of the
applicable civil procedure rules in Singapore and not India .”
(Emphasis supplied)
9.6. The Court interpreted the terms ‘ claim ’, “ makes a claim ”,
“ making a claim that one knows to be false ”, “ fraudulently or
dishonestly or with the intent to injure or annoy any person ” and
“ Court of Justice ” in Section 209.
9.7. The meaning of a ‘claim’ in Section 209
The Court held that a litigant makes a claim before a Court of
Justice for the purpose of Section 209 when he seeks certain relief or
remedies from the Court and a ‘ claim ’ for relief necessarily impasses
the grounds for obtaining that relief. The Court further held that the
word ‘ claim ’ for the purposes of Section 209 of the Penal Code would
also include the defence adopted by a defendant in the suit. The
reason for criminalising false claims and defences is that the plaintiff
as well as the defendant can abuse the process of law by deliberate
falsehoods. The relevant portion of the majority judgment is
reproduced hereunder: –
“The meaning of a “claim”
58. The term “claim”, while appearing in a number of
provisions in the PC, is not defined in the PC, and it therefore
falls to this court to determine what should be regarded as a
“claim” for the purposes of s 209 of the PC.
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59. In The Law Lexicon, it is noted that the word “claim” is
“of very extensive signification, embracing every species of
legal demand” and “is one of the largest words of law” (at
p 329). The protean nature of the word “claim” is illustrated by
the fact that various legal dictionaries provide multiple
definitions. Among some of the more relevant definitions of the
word “claim” for present purposes listed by The Law
Lexicon are (at p 330):
(a) a “demand made of a right or supposed right” or a
“calling of another to pay something due or supposed to be
due”;
(b) a demand for something as due, or an assertion of a right
to something;
(c) “relief and also any grounds of obtaining the relief”; and
(d) the assertion of a cause of action.
xxx xxx xxx
62 . In the context of s 209 of the PC, the most helpful
definitions of the word “claim” are definitions (c) and (d) as
set out at [59] above. Drawing on these definitions, a litigant
makes a “claim” before a court of justice for the purposes of
s 209 when he seeks certain relief or remedies from the court,
and a “claim” for relief necessarily encompasses the grounds
for obtaining that relief.
64. I pause to note that while the word “claim” is ordinarily
taken to refer to the relief prayed for by a claimant, s 209 ought
not to be restrictively confined to just a plaintiff’s claim. It is
noteworthy that when the Indian Law Commissioners first
contemplated criminalising false pleadings, they plainly
regarded false defences as being equally objectionable as false
claims. One of the examples given of a false claim in the Law
Commission Report (at p 98) (see also [87] below) would be as
follows:
Z brings an action against A for a debt which is really due.
A’s plea is a positive averment that he owes Z nothing. The
case comes to trial; and it is proved by overwhelming
evidence that the debt is a just debt. A does not even
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attempt a defence. Ought A in this case to enjoy impunity?
65. The reason for criminalising false defences as well as
false claims is obvious when the purpose of s 209 of the PC is
recalled: the court process can just as easily be abused by
defendants as by plaintiffs in perpetrating deliberate
falsehoods, thereby perverting the course of justice and
undermining the authority of the law. Further, I note that
s 209 when finally enacted in India used the broader term
“claim” in place of the narrower term “civil suit” as the
Indian Law Commissioners originally suggested in the Draft
Provision (see [54] above). I am therefore of the view that the
word “claim”, for the purposes of s 209 of the PC, ought to
also refer to defences adopted by a defendant. ”
(Emphasis supplied)
9.8. The meaning of “makes a claim”
Bachoo Mohan Singh (supra) contains an exhaustive
discussion on the term “ makes a claim ”. The Court observed that a
litigant “ makes a claim ” for the purpose of Section 209 upon the close
of pleadings when the respective cases of the parties are crystallised
and the parties cannot amend their pleadings without the Court’s
permission. The relevant portion of the majority judgment is
reproduced hereunder:-
“The meaning of “makes a claim”
66. The word “makes” is also not defined anywhere in the
PC, and there were vigorous exchanges between BMS’s counsel
and the Prosecution about what it means. BMS’s counsel
argued that a claim is not made until just before a judge
adjudicates on it, while the Prosecution submitted that a
litigant “makes” a claim is as soon as the claim is filed.
xxx xxx xxx
76. It seems to me on the basis of the prevailing civil
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procedure rules in Singapore that the only appropriate point in
time when it can be said that a litigant “makes” a claim for the
purposes of s 209 of the PC is one that takes into account the
present notional deadline for the filing of pleadings, viz, the
close of pleadings. This is the crucial point of time when the
parties’ respective cases have crystallised. At the close of
pleadings, the issues of fact and law between the parties
“should be revealed precisely” (see Sir Jack Jacob &
Iain S Goldrein, Pleadings: Principles and Practice (Sweet &
Maxwell, 1990) at p 4). Thereafter, the parties cannot amend
their pleadings without the court’s intervention.
78. Deeming the close of pleadings as the point in time a
litigant “makes” a claim for the purposes of s 209 of the PC
avoids most of the pitfalls inherent in both parties’ extreme
positions. It is a definitive and determinate point in the
litigation process (see Singapore Court Practice 2009 (Jeffrey
Pinsler SC gen ed) (LexisNexis, 2009) at paras 18/20/2 and
18/20/3), and it gives full effect to the significance of a
plaintiff’s ability, as provided for in the Rules of Court, to file a
reply. At the same time, making the close of pleadings the
decisive point in time also covers the situation where no reply is
made by the plaintiff. In that situation, it would not be
premature to prosecute an offence under s 209 based solely on
what is included in a plaintiff’s statement of claim. It is
important to appreciate, however, that it is only at the close of
pleadings that it becomes possible to say whether the plaintiff’s
“claim” consists of either the statement of claim and reply or
only the statement of claim, for it is only at that stage that the
parties are deemed, in law, to have finalised their pleadings.
79. This construction of s 209 of the PC also promotes the
purpose of the provision, viz, to prevent litigants from
corrupting the administration of justice and abusing the court
process by filing false claims (see [57] above). It is only after
the close of pleadings that the court’s machinery is ordinarily
engaged, in the sense that the close of pleadings “signifies the
commencement of the timeline under O 25 r 1 of the Rules [of
Court] for taking out a summons for directions as well as
triggers in appropriate cases the operation of the automatic
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directions under O 25 r 8” (see the passage quoted
at [77] above). Beyond that point, parties may only make
amendments to their pleadings with leave of court.
Determining that a plaintiff only “makes” a claim for the
purposes of s 209 of the PC at the close of pleadings,
therefore, ensures that the conduct Parliament intended to
prevent is criminalised neither too early nor too late , but at the
precise point of time at which it would ordinarily cause
mischief – that is to say when the interactive curial processes
would usually commence.”
9.9. The meaning of making a claim which one “knows to be
false”
Bachoo Mohan Singh (supra) contains an exhaustive
discussion on this term. The relevant portion of the majority
judgment is reproduced hereunder:-
“84. The word “false” is similarly not defined in the PC,
though it appears in quite a number of other provisions in
relation to different subject matters (eg, false claims (s 209),
false evidence (s 191), false information (s 177), false statement
(s 181), and false instrument (s 264), etc). What is considered
“false” would depend, largely, on the intent and purport of
each particular provision. As for the meaning of the word
“false” under s 209 of the PC, three points are noteworthy.
85. First, given that these are criminal proceedings, the
Prosecution bears the burden of proving the falsity beyond a
reasonable doubt. The Prosecution cannot simply assert that
the claim would have failed, on a balance of probabilities at the
civil trial, or establish that it was probable, possible or could
be inferred that the claim was false, as may ordinarily be
sufficient in a civil case (see Hiralal Sarda and others v
Emperor (1932) 33 Cri LJ 860 at 861). The following
observations by Bucknill J in Lalmoni Nonia and another v
Emperor (1922) 24 Cri LJ 321 at 325, though made within the
context of s 193 of the Indian Penal Code, apply with equal
force to s 209 of the PC:
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[W]hat I do ascertain from the papers which have been
placed before me is that there have been inferences drawn
as to probabilities which may be deduced from facts and
from circumstances which formed the environments of this
somewhat peculiar affair; and, where one has to make up
one’s mind as to inferences and the correctness of those
inferences and as to what is probable and what is
reasonable and what is possible, there is often introduced
… an element of doubt as should properly cause a Court to
give accused persons … the benefit of whatever doubt there
is. Here, I think there is a loophole in this case; although a
suspicious and sinister affair, I cannot think that the charge
has been fully maintained against these two men by the
prosecution. [emphasis added]
86. Second, where questions of law are involved, it cannot be
plausibly said that the claim made in court by the plaintiff (or
defendant, as the case may be) is false. In Baisakhi v The
Empress (1888) 7 PR No 38 (“Baisakhi”), the court opined (at
100):
When the correctness of the claim depends upon the
existence and validity of a custom having the force of law or
upon a question of law and not upon a question of fact, it
will generally be found impossible to establish the charge.
[emphasis added]
I accept Baisakhi as correctly stating the position under s 209
of the PC. It is a legal fiction to say that the courts simply
expound the law as it has always been. Existing statements or
declarations of legal principle ought not to be considered as
being invariably set in stone. Precedents are the servants and
not the masters of the judicial process. In ascertaining and
applying the law, a court is, of course, bound by the decisions
of higher courts. But absent the shackles of stare decisis, a
court may undertake its own enquiry into the state of the law
and depart from earlier decisions. It is then for the court to
make a final determination on any question of law. If it were
otherwise, the law would never be able to progressively adapt
and advance. The contrary position would also have an
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immediate chilling effect on counsel’s ability to uninhibitedly
prosecute a client’s case comprehensively. Given the above, it
is my view that the Prosecution will ordinarily not be able to
establish that a claim resting on a question of law is false for
the purposes of s 209 of the PC, even if the court eventually
rules against the litigant making the claim on that question of
law. I would, therefore, emphatically reject the District
Judge’s suggestion that claims concerning issues of law can
also be considered to be false (see [16] above; see also BMS
(No 1) at [239] and [240]).
87. Third, I will now turn to consider the position in respect
of issues of fact. The Indian Law Commissioners gave the
following illuminating examples of what they regarded to be
“false” claims (the Law Commission Report at p 98):
A lends Z money. Z repays it. A brings an action against Z
for the money, and affirms in his declaration that he lent the
money, and has never been repaid. On the trial A’s receipt
is produced. It is not doubted, A himself cannot deny, that
he asserted a falsehood in his declaration. Ought A to enjoy
impunity? Again: Z brings an action against A for a debt
which is really due. A’s plea is a positive averment that he
owes Z nothing. The case comes to trial; and it is proved by
overwhelming evidence that the debt is a just debt. A does
not even attempt a defence. Ought A in this case to enjoy
impunity? If, in either of the cases which we have stated, A
were to suborn witnesses to support the lie which he has put
on the pleadings, every one of these witnesses, as well as A
himself, would be liable to severe punishment. But false
evidence in the vast majority of cases springs out of false
pleading, and would be almost entirely banished from the
Courts if false pleading could be prevented.
In both examples, it is obvious that the claims made by A were
entirely without factual foundation. In the first example, there
was no factual basis for A to claim for the money, as it had
already been repaid. In the second example, there was
absolutely no factual basis raised by A to support his positive
averment that he owed Z nothing. It is clear, from these
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examples cited by the Indian Law Commissioners, that the
mischief that the drafters intended to address under s 209 of
the Indian Penal Code was that of making claims without
factual foundation.
88. The case of Bulaki Ram, which the High Court Judge and
the District Judge (hereafter referred to collectively as “the
Judges below”) heavily relied on, involved facts that were
actually rather strikingly similar to the first example given by
the Indian Law Commissioners (see [87] above). The plaintiff
in Bulaki Ram brought a claim for Rs 88-11. In the course of
proceedings, the defendant produced a receipt from the plaintiff
for Rs 71-3-3. Before the courts, the plaintiff’s claim to that
extent (ie, Rs 71-3-3) was dismissed but he obtained a judgment
for the balance. The plaintiff was subsequently charged with
making a false claim.
89. On the facts of the case, Straight J held that there
was prima facie evidence for the Prosecution to proceed
against the plaintiff. He did not decide that the plaintiff was
guilty of making a false claim on the facts of the case. On the
contrary, he was careful to emphasise, twice in his judgment,
that he was not trying the case before him or expressing any
opinion on the plaintiff’s guilt. However, the Judges below
relied on Bulaki Ram as excerpted in Justice C K Thakker &
M C Thakker, Ratanlal & Dhirajlal’s Law of Crimes vol 1
th
(Bharat Law House, 26 Ed, 2007) (Ratanlal & Dhirajlal’s
Law of Crimes ), which reads as follows (at p 989):
This section is not limited to cases where the whole claim
made by the defendant is false. The accused brought a suit
against a person to recover Rs. 88-11-0 alleging that the
whole of the amount was due from the defendant. The
defendant produced a receipt for a sum of Rs. 71-3-3, and
this amount was proved to have been paid to the
accused. The accused was thereupon prosecuted
and convicted under this section. It was contended on his
behalf that because a part of the accused’s claim was held
to be well-founded and due and owing, he could not
be convicted under this section. It was held that the
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conviction was right. Straight J., said: … “if that view
were adopted, a man having a just claim against another
for Rs. 5, may make claim for Rs. 1,000, the Rs. 995 being
absolutely false, and he may escape punishment under
this section.” [emphasis added in italics and bold italics]
92. In the examples provided by the Indian Law
Commissioners and Bulaki Ram, the claims, as made, were
prima facie without any factual foundation. The plaintiff
in Bulaki Ram apparently did not question the veracity of the
receipt for Rs 71-3-3 and therefore did not have any factual or
legal basis for claiming for Rs 88-11 in its entirety. In short,
there was not even a colourable claim for the amount claimed
as allegedly due. There was a claim, if at all, only for a very
small fraction of what was alleged to be due. Similarly, in the
first example provided by the Indian Law Commissioners, the
receipt produced was not doubted. In their second example, A
did not even attempt, at trial, a defence despite his positive
averment that he owed Z nothing. In both examples, there were
no facts whatsoever to support the plaintiff’s (or defendant’s)
claim. In my view, it was on this very narrow and facile basis
that these claims were considered by both Straight J and the
Indian Law Commissioners to be false. Pertinently, in none of
these cases or illustrations was there any complex interplay of
issues of fact and law. They simply involved either
unambiguous repeat claims or unarguably sham defences. It
ought to be also pointed out that all the Indian cases involving
s 209 drawn to our attention appear to be instances where the
courts initiated proceedings (against the litigants who had
made false claims) only after all the pertinent facts had been
established at the conclusion of trial proceedings.
93. I would further observe that the Judges below were
content to rely on Bulaki Ram (as excerpted (see[89]–
[90] above)) to suggest that the test for falsity was applied by
considering the pleading on its face (see BMS (No 1) at [234]–
[236] and BMS (No 2) at [52]). However, I do not think
that Bulaki Ram stands for the proposition that the litmus test of
falsity is to be assessed solely by reference to the pleadings
alone, or that every statement of claim which does not, on its
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face, contain all the material facts is a false claim. Neither
does Bulaki Ram stand for the proposition that every
exaggerated or overstated claim is false. On the
contrary Bulaki Ram suggests that the wider factual context has
to be taken into account as its primary consideration was
whether, on the facts of the case, the petitioner there had a
claim for Rs 88-11 in light of the receipt. But in assessing
whether s 209 of the PC is contravened, it is plainly not enough
to merely scrutinise the pleadings of a party.
94. It is vital to appreciate that whether the litigant’s
“claim” or cause of action, properly understood, is false is not
considered merely from whatever he pleads (or omits to
plead): that would be to elevate form over substance. To make
out the offence, the court does not merely inspect how a
litigant’s pleadings have been drafted or the case has been
presented. The real issue is whether, all said and done, the
litigant’s action has a proper foundation which entitles him to
seek judicial relief . Indeed, a similar approach was taken by
Costello J in relation to false statements under s 193 of the
Indian Penal Code in Rash Behary Ray and others v
Emperor AIR 1930 Cal 639, and I see no reason why the same
ought not apply in relation to s 209 of the PC. When examining
the origins of s 209 of the PC, it is also most pertinent that, in
the Draft Provision, the Indian Law Commissioners used the
term “no just ground” [emphasis added] in characterising a
false claim (see [54] above). It must, therefore, follow that
the substance of a party’s claim is crucial. The critical
question, accordingly, is whether there are any grounds,
whether in law or in fact, to make a claim even if they are not
revealed in the pleadings itself. I do not think that s 209 of the
PC was ever intended to operate as a trap for solicitors or
litigants who may inadequately or incorrectly plead their case .
95. I should also mention that a distinction must be drawn
between claims that may be regarded as being legally hopeless
and claims that are false. For example, one may characterise
a claim that is based entirely on love and affection as
consideration as being hopeless in the light of the current
state of contract law, but one certainly cannot say that such a
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claim is false because only the courts can determine what
constitutes good and valuable consideration (or, more
fundamentally, whether consideration is necessary under
contract law). This category of claims, like many types of
claims involving elements of illegality, often involve closely
intertwined, and often inseparable, issues of fact and law.
Given this almost indivisible interrelationship between fact
and law, such matters raise many thorny legal issues. A court
should be slow to label these problematic cases as false even if
they are ultimately found to be hopeless . There are already a
number of effective sanctions that a court can visit upon
litigants and/or counsel who present hopeless claims in court
(see [55] above).
96. As for the requirement that the primary offender and the
abettor each knew that the claim was false (see [111]below),
this is, in my view, always a question of fact and degree. It may
be said that the definition of “false” above may render clients
and their solicitors, who may mistakenly add (or omit) a digit to
the amount claimed in the statement of claim and/or reply, at
risk of offending s 209 inadvertently. I think that such concerns
are overstated, as these clients and solicitors would not, in such
circumstances, have the requisite knowledge that the claim
made was false.”
9.10. The meaning of “Court of Justice”
The Singapore Supreme Court interpreted the term “Court of
Justice” as under:
“104. Section 20 of the PC provides a definition of “court of
justice” in the following terms:
The words “court of justice” denote a judge who is
empowered by law to act judicially alone, or a
body of judges which is empowered by law to act
judicially as a body, when such judge or body of
judges is acting judicially.
105. The term “judge” is defined in s 19 of the PC as follows:
The word “judge” denotes not only every person
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who is officially designated as a judge, but also
every person who is empowered by law to give, in
any legal proceeding, civil or criminal, a definitive
judgment, or a judgment which, if not appealed
against, would be definitive, or a judgment which,
if confirmed by some other authority, would be
definitive, or who is one of a body of persons,
which body of persons is empowered by law to
give such a judgment.
106. At first glance, the definition of “court of justice”
suggests that a “court of justice” is the person(s) who meet(s)
the definition of “judge” in s 19 of the PC, rather than the
judicial institution called a “court”. Ratanlal & Dhirajlal’s
Law of Crimes also suggests (at p 63) that the term “does not
mean … the place or building where justice is administered, but
the Judge or Judges who conduct judicial proceedings in the
due administration of justice”. This implies, therefore, that until
the first day of trial (or the hearing of an interlocutory
application, if any) before a judge, it cannot be said that the
plaintiff makes a claim “before a court of justice”.
107. This, however, is a strained construction that defers the
point at which an offence under s 209 of the PC may be
committed, when the decisive moment is really the close of
pleadings (in the context of actions commenced by writ
(see [76]–[83] above)). Adopting such a construction would be
contrary to the intent and purport of s 209 of the PC, which, as
can be seen from Note G (at [51] above), envisioned a “court
of justice” as an institution rather than as a person or body of
persons.
108. Further, the term “court of justice”, as it is used in the
PC, does not consistently refer to a judge or body of judges. It
is also used to refer to the court as an institution. For instance,
s 51 of the PC provides:
The word “oath” includes a solemn affirmation substituted
by law for an oath, and any declaration required or
authorised by law to be made before a public servant, or to
be used for the purpose of proof, whether in a court of
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justice or not. [Emphasis added]
Here, it is clear that “court of justice” cannot literally refer to
a “judge” or “body of judges”, but must mean, instead, the
court as a legal or judicial institution . In addition, Illustration
(b) to s 76 of the PC provides:
A, an officer of a court of justice, being ordered by that
court to arrest Y, and, after due enquiry, believing Z to
be Y, arrest Z. A has committed no offence. [italics in
original; emphasis added in bold italics]
Whereas a bailiff or sheriff would clearly be “an officer of a
court of justice” within the meaning of Illustration (b) to s 76,
such an individual would not normally be regarded as an
officer of a “judge” or “body of judges”.
109. As such, on a true construction of s 209 of the PC, the
term “court of justice” must mean more than simply a judge
or body of judges acting judicially: it must mean, not so much
the physical edifice of the courthouse building, but the entire
legal institution or body where disputes are adjudicated . On
the facts of this case, the “court of justice” in question would
refer to the Subordinate Courts, where the SOC was initially
filed (Emphasis supplied)
.”
xxx xxx xxx
9.11. Duties of the counsels
The Court discussed the duties of the counsels as under:-
“The Duty not to mislead and the duty of verification
.
113 It is trite that a solicitor, being an officer of the court,
owes a paramount duty to the court, which overrides his duties
to the client (see Pt IV of the Legal Profession (Professional
Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“the Professional
Conduct Rules”); see also Public Trustee and another v By
Products Traders Pte Ltd and others[2005] 3 SLR(R) 449 at
[35], Rondel v Worsley [1969] 1 AC 191 at 227, Saif Ali and
another v Sydney Mitchell & Co (a firm) and
others [1980] AC 198 at 219, and Arthur J S Hall & Co (a
firm) v Simons [2002] 1 AC 615 at 680). This paramountcy is
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justified by reason of “the court” being the embodiment of the
public interest in the administration of justice. No instructions
from a client, tactical considerations or sympathy for a client’s
interests can ever take precedence over this duty.
114. A crucial aspect of this multi-faceted responsibility is the
duty not to mislead the court, also known as the duty of candour
(see, in particular, rr 56, 59(a) and 60(f) of the Professional
Conduct Rules, as well as Principle 21.01 of The Guide to the
Professional Conduct of Solicitors (Nicola Taylor gen ed) (The
Law Society, 8th Ed, 1999) (“The Guide”)). Indeed, this duty is
a touchstone of our adversarial system which is based upon the
faithful discharge by an advocate and solicitor of this duty to
the court. The duty applies when performing any act in the
course of practice. Litigants and/or their solicitors must neither
deceive nor knowingly or recklessly mislead the court. Untrue
facts cannot be knowingly stated, true facts cannot be
misleadingly presented, material facts cannot be concealed and
a client or witness must not be allowed to mislead the court.
Unquestionably, the tension between the duty to the court and
to the client can only be reconciled by the solicitor maintaining
his poise by dint of steering a cautious middle course. As
Lord Templeman perceptively noted in an article titled “The
Advocate and the Judge” (1999) 2 Legal Ethics 11 (at 11):
“The litigant aims to obtain a favourable result.
The advocate aims to persuade the judge to reach
a result favourable to his client by fair means. The
advocate, not the litigant, must decide which
means are fair in the light of the advocate’s
training and experience in the law.”
Simultaneously, a solicitor must have his eye on his
client’s success as well as live up to his non-derogable
responsibilities to ensure the administration of justice. I should
explain that I have briefly touched on all these wide-ranging
duties and solemn responsibilities so as to illustrate the point
that it is sometimes no easy task, especially in problematic
cases, for a solicitor to balance competing and sometimes
conflicting considerations in the faithful discharge of a client’s
instructions.
RFA 784/2010 Page 48 of 99
115. The duty of candour has both a prescriptive and a
proscriptive dimension in civil proceedings. On the one hand,
the solicitor must, for example, ensure that all discoverable
documents are produced and he must disclose to the court even
adverse legal authorities; on the other hand, he must refrain
from misleading the court as to the law or the facts. He has a
duty to place before the court his client’s version of facts but
must not massage or tamper with the facts or invent a defence.
The solicitor cannot knowingly place a false story before the
court. So long as he is not misleading the court, he is not
otherwise constrained from presenting his client’s case, and is
in fact afforded considerable latitude in how he chooses to do
so. As Denning LJ explained in Tombling v Universal Bulb
Company, Limited [1951] 2 Times LR 289 (at 297):
“ The duty of counsel to his client in a civil case …
is to make every honest endeavour to succeed. He
must not, of course, knowingly mislead the Court,
either on the facts or on the law, but, short of that,
he may put such matters in evidence or omit such
others as in his discretion he thinks will be most to
the advantage of his client. … The reason is
because he is not the judge of the credibility of the
witnesses or of the validity of the arguments. He is
only the advocate employed by the client to speak
for him and present his case, and he must do it to
the best of his ability, without making himself the
judge of its correctness, but only of its honesty.”
[emphasis added]
116. The solicitor’s duty, in this respect, is to present his
client’s case in the most favourable light and not prejudge the
outcome. Ultimately, it is for the court to decide that outcome.
In the famous exchange between the irrepressible James
Boswell and that personification of common sense Samuel
Johnson (as quoted in John V Barry, “The Ethics of Advocacy”
(1941) 15 ALJ 166), Boswell reportedly asked (at 169): “But
what do you think of supporting a cause which you know to be
bad?” Dr Johnson replied:
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“Sir, you do not know it to be good or bad till the
Judge determines it. … It is his business to judge;
and you are not to be confident in your own
opinion that a cause is bad, but to say all you can
for your client and then hear the Judge’s opinion.”
Notably, Dr Johnson also penetratingly pointed out (at 169)
that a solicitor has no charter to mislead and elaborated on why he
should not act as an appraiser of his client’s veracity:
“ [A] lawyer has no business with the justice or
injustice of the cause which he undertakes …. [It] is to be
decided by the judge. … A lawyer is not to tell what he
knows to be a lie; he is not to produce what he knows to
be a false deed; but he is not to usurp the province of …
the judge and determine what shall be the effect of the
evidence,―what shall be the result of legal argument. As
it rarely happens that a man is fit to plead his own cause,
lawyers are a class of the community, who, by study and
experience, have acquired the art and power of
arranging evidence, and of applying to the points at issue
what the law has settled. A lawyer is to do for his client
all that his client might fairly do for himself, if he could.
If, by a superiority of attention, he has the advantage of
his adversary, it is an advantage to which he is entitled.
There must always be some advantage, on one side or
other; and it is better that advantage should be had by
talents than by chance. If lawyers were to undertake no
causes till they were sure they were just, a man might be
precluded altogether from a trial of his claim, though,
were it judicially examined, it might be found a very just
claim. ”
117. The solicitor is also entitled to use all available legal
procedures to the best advantage of the client but cannot
manipulate or misuse the machinery by, for example, employing
delaying tactics or engaging in a battle of attrition. In
advancing his client’s cause, the employment of legal tactics or
strategies by a solicitor in order to pin an opposing party or to
extract concessions is not improper if carried out in accordance
with the intent and purport of the Rules of Court. Truth in
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pleadings is, however, an extremely difficult area to police and
circumscribe with bright lines. For instance, a litigant and his
solicitor ought not to put the opposing side to proof of a fact
that is known by them to exist. Such a denial, particularly if
done for an ulterior purpose, is certainly ethically improper but
ought not to be a crime. However, if one was to take the
determinations of the lower courts to their logical end (as this
denial is also a false pleading by their capacious definition),
large swathes of pleadings would end up being criminalised.
118. The broad issue raised in this case is whether the duty of
candour to the court requires the solicitor concerned to verify
the truthfulness or factual accuracy of his client’s instructions
and if so the extent of this duty. This point was addressed
in Wee Soon Kim Anthony v Law Society of Singapore [2002]
1 SLR(R) 954 (“Anthony Wee (No 2)”), where this court
explained (at [23]):
“There is no general duty on the part of a solicitor
that he must verify the instructions of his client. This was
laid down in Wee Soon Kim Anthony v Law Society of
Singapore [1988] 1 SLR(R) 455 and Tang Liang Hong v
Lee Kuan Yew [[1997] 3 SLR(R) 576]. It would be
different if there were compelling reasons or
circumstances which required the solicitor to verify what
the client had instructed.” [emphasis added]
More than a decade earlier, Chan Sek Keong JC, in
another decision, Wee Soon Kim Anthony v Law Society of
Singapore [1988] 1 SLR(R) 455 (“Anthony Wee (No 1)”),
involving the same litigant solicitor, unequivocally declared
with his customary acuity and clarity (at [21]):
“It is not for an advocate and solicitor, whether in
his capacity as counsel or as solicitor, to believe or
disbelieve his client’s instructions, unless he has himself
has personal knowledge of the matter or unless his
client’s statements are inherently incredible or logically
impossible. His duty to his client does not go beyond
advising him of the folly of making incredible or illogical
statements. [emphasis added]
RFA 784/2010 Page 51 of 99
Of course, a solicitor cannot simply take whatever the client
states at face value. The solicitor has a duty to the client to
assess the instructions holistically and explain to the client
what may support or contradict the claim. He has to ensure that
his client understands the duty to be truthful and the
consequences of being found to be untruthful.
119. This is also the current position in England. The Guide confirms
(see Principle 21.21, paras 4–5) that there is, in general, no duty upon
a solicitor to enquire in every case whether his client is telling the
truth, and the mere fact that a client makes inconsistent statements to
his solicitor is no reason for the solicitor to verify those statements; it
is only where it is clear that the client is attempting to put forward
false evidence to the court that the solicitor should do so, or cease to
act. Evidently, therefore, the duty to verify arises only in the presence
of compelling reasons or circumstances, and is not triggered simply
because the client gives conflicting instructions. Where, however, the
client’s instructions are consistent and unwavering, the answer must
surely be that there is no peculiar requirement to take extraordinary
steps to assess the veracity of the client’s story. I observed in BMS
(No 3) at [75] that:
“ Solicitors frequently find themselves in a position
where they are confronted with opposing versions of
events, but should be allowed to act on their client’s
instructions even in the face of conflicting evidence,
unless the instructions received fly in the face of
incontrovertible evidence or documents. As
Lord Halsbury sagely observed more than a hundred
years ago, “Very little experience of courts of justice
would convince any one that improbable stories are very
often true notwithstanding their improbability.” (see
Showell Rogers, “The Ethics of Advocacy” (1889)
15 LQR 259 at 265). The solicitor should not create or
act as a pre-trial sieve that a client’s instructions must
pass through as he or she is not a fact-finder.”
[emphasis added]
9.12. Choo Han Teck , J. (in his dissenting judgment) held that a
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claim can be made at any time before any Court, including an
.
appellate court, and it can be made orally The dissenting judgment
held that the appellant had made a false claim before the Court. The
relevant portion of the dissenting judgment is as under: –
“ 149. The central question concerns the point when an
offence under s 209 of the PC is committed. The actus
reus of the offence under this section, is committed when
the accused “makes before a court of justice any claim”.
The mens rea of the crime consists of the knowledge of
the falsity of the claim and the intention thereby to
injure another by the making of that claim. I am of the
view that “whoever makes a claim he knows to be false”
should not be interpreted to mean “whoever makes a
claim at the close of pleadings or after a reply has been
filed”. That implies that a false claim cannot be made
before or after the close of pleadings or after a reply, or
that it cannot be made in other forms of original action,
or before this court, or that a claim cannot be false if it
were made orally. There is nothing in s 209 to suggest
that Parliament had intended such a narrow scope for
this offence. The mischief to be averted by s 209 is the
making of a false claim, however made, before any
court of justice . When a person does an act he must
know at the point he performed that act whether he
would be committing an offence or not. Whether a
person’s conduct amounts to a criminal act cannot be
contingent upon a subsequent event even if that event was
a procedural step in the civil process. In this case, the
claim was made when BMS filed the statement of claim in
court. The claim was not made in his reply, and neither
can his reply exonerate his crime…. An act (conduct)
such as that contemplated in s 209 is deemed criminal
when it is completed with the requisite mens rea. The
provision in s 209 is simple, straightforward and clear.
A claim is any prayer a litigant (not necessarily a
plaintiff) makes before a court in expectation of a
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ruling in his favour and thus sanctioning his claim. A
defendant can also make a claim, and so can third
parties . The reply is thus a false clue to a puzzle that does
not exist.
150. I also feel obliged to differ from the majority’s
view that the plaintiff has a strategic right to “reserve
facts to be included in the reply”. This is not a civil
matter and I shall not dwell on the nature and function of
pleadings except to express my view that it is the time-
honoured rule of pleading that a plaintiff has to plead all
material facts in his statement of claim and not reserve
parts for later. Lawyers ought to be encouraged to be
forthright and open and not operate on the sly. The
reply is meant only to address fresh issues raised in the
defence which requires a rebuttal. In any event, nothing
in the reply generally, or in this case, would have any
bearing on a claim which was false in a statement of
claim; the falsehood cannot be sanctified afterwards. A
lawyer must surely know that fraud can still be
perpetuated even if all the steps in civil procedure have
been complied with. It is those kinds of cases,ie, cases in
which a litigant uses the court as a means of cheating
another, that s 209 seeks to prevent. Such schemes are
more likely to fail when the procedures are not
complied with. To hold that the crime manifests only
after the reply has been filed serves only to test the
ingenuity of the criminal mind .
151. In the majority view, the reply is significant in the
operation of s 209 because it provides the plaintiff the
opportunity of changing his mind and thus claiming
immunity on the criminal law principle of locus
poenitentiae. I do not agree with the application of locus
poenitentiae in this way. That principle allows a criminal
mind to recant at the last moment before the crime is
committed. A man may buy poison with the criminal
intent to kill his wife, lace her soup with it, but change
his mind as he approaches her with the poisoned dish
and pours it out of the window. Applying that principle
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here, BMS had ample opportunity to change his mind
during any of his consultations with his clients, and
even after the draft statement of claim had been settled,
or even in the morning as the clerk was about to file the
claim. But once the claim is made before the court, the
act is done. He can withdraw it, but that only goes to
mitigation, the false claim having already been made.
152. The main reason the majority of this court in BMS
(No 3) allowed parties an extension of time to file
applications for questions to be determined by this court
was the concern that this case might pave the way for
widespread prosecution of lawyers. I am of the view that
this arose from the misapprehension that the
longstanding acceptance that lawyers are not obliged to
verify the claims of their clients might be withdrawn and
thus impose an unbearable onus on the lawyers. This is a
misapprehension because s 209 does not impose any
greater obligation on a lawyer than what they now have.
There is an important difference between verifying the
truth of a client’s claim or instructions and filing a claim
for the client knowing that the claim was false. I do not
think that the Law Society of Singapore or any of its
members wishes to protect a lawyer who knowingly files
a claim that was false, and with the dishonest intent to
injure (in the words of s 209) anyone. The protection is
meant for those who might be so injured. That is the
purpose of s 209.
153. Thus, a claim in a court of justice should be
understood as any demand or assertion of right made
before any court and requiring the sanction of that
court. When an accused stands trial for an s 209
offence, all that the trial judge in that trial (and not the
court in the civil claim) needs to do is to determine
whether the claim was true or false and whether it was
made with a dishonest intention to injure another.
These are matters of fact and have nothing to do with
law. It would be remarkable if a trial judge does not
know how to distinguish between what is true and what
RFA 784/2010 Page 55 of 99
is false . Whether he made the right decision in the end is
a finding of fact, that is to say that even though a judge
may know what is true and what is false, he might still
erroneously conclude that the issue in question was true
when in truth it was false. This court is not concerned in
this instance with whether or not this was the case here,
and the High Court below had found that there were no
such errors. The court trying the accused in an s 209
offence need not have to depend on the progress or the
outcome of the civil claim in which the alleged false
claim was made . Whether it was a case of “defective
pleading” as the majority thought so, or a case of making
a false claim is precisely the fact that the trial judge has
to find. The trial judge did so in this case.
154. For the reasons above, I am of the view that no
one – either in the trial at first instance or the High
Court on appeal – misapprehended the law. The trial
judge was required to determine whether the claim filed
by BMS on behalf of his client for $490,000 was a false
claim and whether both BMS and his client, knowing that
the claim was false, dishonestly intended to cause a
wrongful loss to the defendant there or a wrongful gain
to BMS’s client. If the trial judge had erred in finding
that the claim was a false claim made with dishonest
intention, it was an error of fact. It seems to me that the
trial judge had taken all the evidence into consideration
and his findings were upheld by the High Court on
appeal. I therefore, respectfully, dissent from the
majority view. ”
(Emphasis supplied)
United States of America
9.13. Rule 11 of the Federal Rules of Civil Procedure provides that
by presenting pleadings, written motion or other papers before the
Court, an attorney or unrepresented party certifies that it is not being
presented for any improper purpose; the claims and defences are
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warranted by law; factual contentions have evidentially support and
denial of factual contentions are warranted on the evidence. The
object of Rule 11 to deter frivolous claims, to curb abuse of the
process of Court and to require the litigants to refrain from
conduct that frustrates just, speedy and inexpensive
determination of the claims . Rule 11(c) empowers the Court to put
sanctions against the attorney/litigant for harassment, frivolous
arguments or lack of factual investigation. Rule 11 of the Federal
Rules of Civil Procedure is reproduced hereunder:
“ Rule 11 of Federal Rules of Civil Procedure
(a) Signature. Every pleading, written motion, and other paper
must be signed by at least one attorney of record in the
attorney’s name—or by a party personally if the party is
unrepresented. The paper must state the signer’s address, e-
mail address, and telephone number. Unless a rule or statute
specifically states otherwise, a pleading need not be verified or
accompanied by an affidavit. The court must strike an unsigned
paper unless the omission is promptly corrected after being
called to the attorney’s or party’s attention.
(b) Representations To The Court. By presenting to the court a
pleading, written motion, or other paper—whether by signing,
filing, submitting, or later advocating it—an attorney or
unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as
to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for
establishing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
RFA 784/2010 Page 57 of 99
after a reasonable opportunity for further investigation or
discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on belief or a lack of information.
(c) Sanctions.
(1) In General. If, after notice and a reasonable opportunity to
respond, the court determines that Rule 11(b) has been
violated, the court may impose an appropriate sanction on any
attorney, law firm, or party that violated the rule or is
responsible for the violation. Absent exceptional circumstances,
a law firm must be held jointly responsible for a violation
committed by its partner, associate, or employee.
(2) Motion for Sanctions. A motion for sanctions must be made
separately from any other motion and must describe the specific
conduct that allegedly violates Rule 11(b). The motion must be
served under Rule 5, but it must not be filed or be presented to
the court if the challenged paper, claim, defense, contention, or
denial is withdrawn or appropriately corrected within 21 days
after service or within another time the court sets. If warranted,
the court may award to the prevailing party the reasonable
expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative. On its own, the court may order an
attorney, law firm, or party to show cause why conduct
specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction. A sanction imposed under this rule
must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated.
The sanction may include nonmonetary directives; an order to
pay a penalty into court; or, if imposed on motion and
warranted for effective deterrence, an order directing payment
to the movant of part or all of the reasonable attorney’s fees
and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions. The court must not
impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order
under Rule 11(c)(3) before voluntary dismissal or settlement of
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the claims made by or against the party that is, or whose
attorneys are, to be sanctioned.
(6) Requirements for an Order. An order imposing a sanction
must describe the sanctioned conduct and explain the basis for
the sanction.
(d) Inapplicability to Discovery. This rule does not apply to
disclosures and discovery requests, responses, objections, and
motions under Rules 26 through 37.”
9.14. Rule 11 of the Federal Rules of Civil Procedure is proposed to
be amended by imposing mandatory sanctions on attorneys, law firms,
or parties who file frivolous “claims, defences, and other legal
contentions”. The word ‘may’ in Rule 11 is proposed to be substituted
by ‘shall’ to impose mandatory sanctions instead of allowing a safe
harbour to the attorneys to correct their pleadings, claims or
contentions within a 21-day period without fear of sanctions. Lawsuit
Abuse Reduction Act, 2015, passed in the House of Representatives
on September 17, 2015, has been sent to the Senate and thereafter,
referred to the Judicial Committee.
10. Case law on false claim and defences
10.1. In T. Arivandandam v. T.V. Satyapal and Anr. (1977) 4 SCC
467, the Supreme Court held that frivolous and manifestly vexatious
litigation should be shot down at the very threshold. Relevant portion
of the said judgment is as under:
“……The learned Munsif must remember that if on a
meaningful- not formal- reading of the plaint it is
manifestly vexatious, and meritless, in the sense of not
disclosing a clear right to sue, he should exercise his
power under Order 7, Rule 11 CPC taking care to see
that the ground mentioned therein is fulfilled. And, if
clever drafting has created the illusion of a cause of
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action, nip it in the bud at the first hearing by
examining the party searchingly under Order 10,
CPC. An activist Judge is the answer to irresponsible
law suits. The trial courts would insist imperatively
on examining the party at the first hearing so that
bogus litigation can be shot down at the earliest
stage. The Penal Code is also resourceful enough to
meet such men, (Cr. XI) and must be triggered
against them….. ”
(Emphasis supplied)
10.2. In S.P. Chengalvaraya Naida (dead) by LRs v. Jagannath ,
AIR 1994 SC 853, the respondent instituted a suit for partition of an
immovable property without disclosing that he had already
relinquished all his rights in respect of the subject property by
executing a registered release deed. The appellant obtained a
preliminary decree. At the stage of hearing of the application for final
decree, the appellant became aware of the release deed and challenged
the preliminary decree on the ground of having been obtained by the
respondent by playing fraud on the Court. The Trial Court accepted
the appellant’s contention and dismissed the respondent’s application
for final decree. The High Court reversed the findings of the Trial
Court against which the appellant approached the Supreme Court.
The Supreme Court allowed the appeal and held that the respondent
had played fraud upon the Court by withholding the release deed
executed by him. The Supreme Court held that a person, who’s case is
based on falsehood, has no right to approach the Court and he can be
thrown out at any stage of the litigation. Relevant portion of the
judgment is reproduced hereunder:
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“7. …The courts of law are meant for imparting
justice between the parties. One who comes to the
court, must come with clean hands. We are
constrained to say that more often than not, process
of the court is being abused. Property-grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the court-process a
convenient lever to retain the illegal gains
indefinitely. We have no hesitation to say that a
person, who’s case is based on falsehood, has no
right to approach the court. He can be summarily
thrown out at any stage of the litigation.
8. … Non-production and even non-mentioning of
the release deed at the trial is tantamount to playing
fraud on the court. We do not agree with the
observations of the High Court that the appellants-
defendants could have easily produced the certified
registered copy of Ex. B-15 and non-suited the
plaintiff. A litigant, who approaches the court, is
bound to produce all the documents executed by him
which are relevant to the litigation. If he withholds a
vital document in order to gain advantage on the
other side then he would be guilty of playing fraud on
the court as well as on the opposite party.”
(Emphasis supplied)
10.3. In Swaran Singh v. State of Punjab, (2000) 5 SCC 668, the
Supreme Court held that perjury has become a way of life in Courts.
The Supreme Court held as under:
“36. …… Perjury has also become a way of life in the law
courts. A trial Judge knows that the witness is telling a lie and
is going back on his previous statement, yet he does not wish
to punish him or even file a complaint against him. He is
required to sign the complaint himself which deters him from
filing the complaint….. ”
(Emphasis supplied)
RFA 784/2010 Page 61 of 99
10.4. In Dalip Singh v. State of U.P. , (2010) 2 SCC 114, the
Supreme Court observed that a new creed of litigants have cropped up
in the last 40 years who do not have any respect for truth and
shamelessly resort to falsehood and unethical means for achieving
their goals. The observations of the Supreme Court are 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 over
shadowed 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 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.”
(Emphasis supplied)
10.5. In Ramrameshwari Devi v. Nirmala Devi (2011) 8 SCC 249,
the Supreme Court held that in appropriate cases the Courts may
consider ordering prosecution, otherwise it may not be possible to
maintain purity and sanctity of judicial proceedings. The Supreme
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Court observed as under:-
“ 43. ……..unless we ensure that wrongdoers are
denied profit or undue benefit from the frivolous
litigation, it would be difficult to control frivolous
and uncalled for litigations. In order to curb uncalled
for and frivolous litigation, the Courts have to ensure
that there is no incentive or motive for uncalled for
litigation. It is a matter of common experience that
Court’s otherwise scarce and valuable time is
consumed or more appropriately, wasted in a large
number of uncalled for cases .
xxx xxx xxx
47. We have to dispel the common impression that a
party by obtaining an injunction based on even
false averments and forged documents will tire out
the true owner and ultimately the true owner will
have to give up to the wrongdoer his legitimate
profit. It is also a matter of common experience that
to achieve clandestine objects, false pleas are often
taken and forged documents are filed
indiscriminately in our courts because they have
hardly any apprehension of being prosecuted for
perjury by the courts or even pay heavy costs.
xxx xxx xxx
52C . … In appropriate cases the Courts may
consider ordering prosecution otherwise it may not
be possible to maintain purity and sanctity of judicial
proceedings. ”
(Emphasis supplied)
10.6. In Maria Margarida Sequeria Fernandes v. Erasmo Jack de
Sequeria , (2012) 5 SCC 370, the Supreme Court observed that false
claims and defences are serious problems. The Supreme Court held as
under: –
“ False claims and false defences
81. False claims and defences are really serious problems with
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real estate litigation, predominantly because of ever escalating
prices of the real estate. Litigation pertaining to valuable real
estate properties is dragged on by unscrupulous litigants in the
hope that the other party will tire out and ultimately would
settle with them by paying a huge amount. This happens
because of the enormous delay in adjudication of cases in our
Courts. If pragmatic approach is adopted, then this problem
can be minimized to a large extent.
10.7. In Kishore Samrite v. State of Uttar Pradesh , (2013) 2 SCC
398, the Supreme Court held as under:
“32. The cases of abuse of process of court and such allied
matters have been arising before the courts consistently. This
Court has had many occasions where it dealt with the cases of
this kind and it has clearly stated the principles that would
govern the obligations of a litigant while approaching the court
for redressal of any grievance and the consequences of abuse of
process of court. We may recapitulate and state some of the
principles. It is difficult to state such principles exhaustively
and with such accuracy that would uniformly apply to a variety
of cases. These are:
32.1. Courts have, over the centuries, frowned upon litigants
who, with intent to deceive and mislead the courts, initiated
proceedings without full disclosure of facts and came to the
courts with “unclean hands”. Courts have held that such
litigants are neither entitled to be heard on the merits of the
case nor are entitled to any relief .
32.2. The people, who approach the court for relief on an ex
parte statement, are under a contract with the court that they
would state the whole case fully and fairly to the court and
where the litigant has broken such faith, the discretion of the
court cannot be exercised in favour of such a litigant.
32.3. The obligation to approach the court with clean hands is
an absolute obligation and has repeatedly been reiterated by
this Court.
32.4. Quests for personal gains have become so intense that
those involved in litigation do not hesitate to take shelter of
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falsehood and misrepresent and suppress facts in the court
proceedings. Materialism, opportunism and malicious intent
have overshadowed the old ethos of litigative values for small
gains.
32.5. 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 .
32.6. The court must ensure that its process is not abused and
in order to prevent abuse of process of court, it would be
justified even in insisting on furnishing of security and in cases
of serious abuse, the court would be duty-bound to impose
heavy costs.
32.7. Wherever a public interest is invoked, the court must
examine the petition carefully to ensure that there is genuine
public interest involved. The stream of justice should not be
allowed to be polluted by unscrupulous litigants.
32.8. The court, especially the Supreme Court, has to maintain
the strictest vigilance over the abuse of process of court and
ordinarily meddlesome bystanders should not be granted
“visa”. Many societal pollutants create new problems of
unredressed grievances and the court should endure to take
cases where the justice of the lis well justifies it………….
xxx xxx xxx
36. The party not approaching the court with clean hands
would be liable to be non-suited and such party, who has also
succeeded in polluting the stream of justice by making patently
false statements, cannot claim relief, especially under Article
136 of the Constitution. While approaching the court, a litigant
must state correct facts and come with clean hands. Where such
statement of facts is based on some information, the source of
such information must also be disclosed. Totally misconceived
petition amounts to an abuse of process of court and such a
litigant is not required to be dealt with lightly, as a petition
containing misleading and inaccurate statement, if filed, to
achieve an ulterior purpose amounts to an abuse of process of
court . A litigant is bound to make “full and true disclosure of
facts”………………..
RFA 784/2010 Page 65 of 99
37. The person seeking equity must do equity. It is not just
the clean hands, but also clean mind, clean heart and clean
objective that are the equi-fundamentals of judicious litigation.
The legal maxim jure naturae aequum est neminem cum
alterius detrimento et injuria fieri locupletiorem, which means
that it is a law of nature that one should not be enriched by the
loss or injury to another, is the percept for courts. Wide
jurisdiction of the court should not become a source of abuse of
process of law by the disgruntled litigant. Careful exercise is
also necessary to ensure that the litigation is genuine, not
motivated by extraneous considerations and imposes an
obligation upon the litigant to disclose the true facts and
approach the court with clean hands.
38. No litigant can play “hide and seek” with the courts or
adopt “pick and choose”. True facts ought to be disclosed as
the court knows law, but not facts. One, who does not come
with candid facts and clean breast cannot hold a writ of the
court with soiled hands. Suppression or concealment of
material facts is impermissible to a litigant or even as a
technique of advocacy. In such cases, the court is duty-bound to
discharge rule nisi and such applicant is required to be dealt
with for contempt of court for abusing the process of
court…………..
39. Another settled canon of administration of justice is
that no litigant should be permitted to misuse the judicial
process by filing frivolous petitions. No litigant has a right to
unlimited drought upon the court time and public money in
order to get his affairs settled in the manner as he wishes.
Easy access to justice should not be used as a licence to file
misconceived and frivolous petitions ……………………….”
(Emphasis supplied)
10.8. In Subrata Roy Sahara v. Union of India (supra), the Supreme
Court observed as under:
“ 188. The number of similar litigants, as the parties in this
group of cases, is on the increase. They derive their strength
from abuse of the legal process. Counsel are available, if the
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litigant is willing to pay their fee. Their percentage is slightly
higher at the lower levels of the judicial hierarchy, and almost
non-existent at the level of the Supreme Court. One wonders
what is it that a Judge should be made of, to deal with such
litigants who have nothing to lose. What is the level of merit,
grit and composure required to stand up to the pressures of
today’s litigants? What is it that is needed to bear the affront,
scorn and ridicule hurled at officers presiding over courts?
Surely one would need superhumans to handle the emerging
pressures on the judicial system. The resultant duress is
gruelling. One would hope for support for officers presiding
over courts from the legal fraternity, as also, from the superior
judiciary up to the highest level. Then and only then, will it be
possible to maintain equilibrium essential to deal with
complicated disputations which arise for determination all the
time irrespective of the level and the stature of the court
concerned. And also, to deal with such litigants.
xxx xxx xxx
193. This abuse of the judicial process is not limited to any
particular class of litigants. The State and its agencies litigate
endlessly upto the highest Court, just because of the lack of
responsibility, to take decisions. So much so, that we have
started to entertain the impression, that all administrative and
executive decision making, are being left to Courts, just for that
reason. In private litigation as well, the concerned litigant
would continue to approach the higher Court, despite the fact
that he had lost in every Court hitherto before. The effort is not
to discourage a litigant, in whose perception, his cause is fair
and legitimate. The effort is only to introduce consequences, if
the litigant’s perception was incorrect, and if his cause is found
to be, not fair and legitimate, he must pay for the same. In the
present setting of the adjudicatory process, a litigant, no matter
how irresponsible he is, suffers no consequences. Every litigant,
therefore likes to take a chance, even when counsel’s advice is
otherwise.”
10.9. In Satyender Singh v. Gulab Singh , 2012 (129) DRJ 128, the
Division Bench of this Court following Dalip Singh v. State of U.P.
RFA 784/2010 Page 67 of 99
(supra) observed that the Courts are flooded with litigation with false
and incoherent pleas and tainted evidence led by the parties due to
which the judicial system in the country is choked and such litigants
are consuming Courts’ time for a wrong cause. The observations of
this Court are as under:-
“ 2. As rightly observed by the Supreme Court, Satya is a
basic value of life which was required to be followed by
everybody and is recognized since many centuries. In spite of
caution, courts are continued to be flooded with litigation with
false and incoherent pleas and tainted evidence led by the
parties. The judicial system in the country is choked and such
litigants are consuming courts’ time for a wrong cause.
Efforts are made by the parties to steal a march over their
rivals by resorting to false and incoherent statements made
before the Court. Indeed, it is a nightmare faced by a Trier of
Facts; required to stitch a garment, when confronted with a
fabric where the weft, shuttling back and forth across the warp
in weaving, is nothing but lies. As the threads of the weft fall,
the yarn of the warp also collapses; and there is no fabric left.”
(Emphasis supplied)
10.10.In Padmawati v. Harijan Sewak Sangh , 154 (2008) DLT 411,
the learned Single Judge of this Court noted as under:
“6. The case at hand shows that frivolous defences and
frivolous litigation is a calculated venture involving no risks
situation. You have only to engage professionals to prolong the
litigation so as to deprive the rights of a person and enjoy the
fruits of illegalities. I consider that in such cases where Court
finds that using the Courts as a tool, a litigant has perpetuated
illegalities or has perpetuated an illegal possession, the Court
must impose costs on such litigants which should be equal to
the benefits derived by the litigant and harm and deprivation
suffered by the rightful person so as to check the frivolous
litigation and prevent the people from reaping a rich harvest of
illegal acts through the Courts. One of the aim of every judicial
RFA 784/2010 Page 68 of 99
system has to be to discourage unjust enrichment using Courts
as a tool. The costs imposed by the Courts must in all cases
should be the real costs equal to deprivation suffered by the
rightful person.
xxx xxx xxx
9. Before parting with this case, I consider it necessary to pen
down that one of the reasons for over-flowing of court dockets
is the frivolous litigation in which the Courts are engaged by
the litigants and which is dragged as long as possible. Even if
these litigants ultimately loose the lis, they become the real
victors and have the last laugh . This class of people who
perpetuate illegal acts by obtaining stays and injunctions from
the Courts must be made to pay the sufferer not only the entire
illegal gains made by them as costs to the person deprived of
his right and also must be burdened with exemplary costs. Faith
of people in judiciary can only be sustained if the persons on
the right side of the law do not feel that even if they keep
fighting for justice in the Court and ultimately win, they would
turn out to be a fool since winning a case after 20 or 30 years
would make wrong doer as real gainer, who had reaped the
benefits for all those years. Thus, it becomes the duty of the
Courts to see that such wrong doers are discouraged at every
step and even if they succeed in prolonging the litigation due to
their money power, ultimately they must suffer the costs of all
these years long litigation. Despite settled legal positions, the
obvious wrong doers, use one after another tier of judicial
review mechanism as a gamble, knowing fully well that dice is
always loaded in their favour, since even if they lose, the time
gained is the real gain. This situation must be redeemed by the
Courts.”
10.11.In A. Hiriyanna Gowda v. State of Karnataka , 1998 Cri.L.J.
4756, the Karnataka High Court held it essential to take action in
respect of false claims in the interest of purity of working of the
Courts. The High Court further held that the disastrous result of the
leniency/indulgence has sent wrong signals to the litigants. Relevant
RFA 784/2010 Page 69 of 99
portion of the said judgment is reproduced hereunder:
“1. The present application is filed under Section 340, Cr. P.C.
and undoubtedly involves a power that the Courts have been
seldom exercising. It has unfortunately become the order of the
day, for false statements to be made in the course of judicial
proceedings even on oath and attempts made to substantiate
these false statements through affidavits or fabricated
documents. It is very sad when this happens because the real
backbone of the working of the judicial system is based on the
element of trust and confidence and the purpose of obtaining a
statement on oath from the parties or written pleadings in order
to arrive at a correct decision after evaluating the respective
positions. In all matters of fact therefore, it is not only a
question of ethics, but an inflexible requirement of law that
every statement made must be true to the extent that it must be
verified and correct to the knowledge of the person making it.
When a client instructs his learned Advocate to draft the
pleadings, the basic responsibility lies on the clients because
the Advocate being an Officer of the Court acts entirely on the
instructions given to him, though the lawyer will not be immune
from even a prosecution. If the situation is uncertain it is for his
client to inform his learned Advocate and consequently if false
statements are made in the pleadings the responsibility will
devolve wholly and completely on the party on whose behalf
those statements are made.
2. It has unfortunately become common place for the pleadings
to be taken very lightly and for nothing but false and incorrect
statements to be made in the course of judicial proceedings, for
fabricated documents to be produced and even in cases where
this comes to the light of the Court the party seems to get away
because the Courts do not take necessary counter-action.
3. The disastrous result of such leniency or indulgence is that
it sends out wrong signals. It creates almost a licence for
litigants and their lawyers to indulge in such serious
malpractices because of the confidence that no action will
result. To my mind, therefore, the fact that the petitioner has
pressed in this application requires to be commended because
RFA 784/2010 Page 70 of 99
it is a matter of propriety and it is very necessary at least in a
few glaring cases that an example be made of persons who are
indulging in such malpractices which undermine the very
administration of justice dispensation system and the working
of the Courts. This will at least have a deterrent effect on
others.
6. It is true that the power that is now being exercised is
seldom exercised, but I am firmly of the view that in the
interest of the purity of the working the Courts that it is
absolutely essential to take such corrective action whenever
an instance of the present type arises. ”
(Emphasis supplied)
Duty of Court to discover truth. Truth should be the guiding star in
the entire judicial process.
11. In Ved Parkash Kharbanda v. Vimal Bindal, 198 (2013) DLT
555, this Court considered a catena of judgments in which the
Supreme Court held that the truth is the foundation of justice and
should be the guiding star in the entire judicial process. This Court
also discussed the meaning of truth and how to discover truth.
Relevant portion of the said judgment is reproduced hereunder:
“11.Truth should be the Guiding Star in the Entire Judicial
Process
11.1 Truth is the foundation of justice. Dispensation of justice,
based on truth, is an essential feature in the justice delivery
system. People would have faith in Courts when truth alone
triumphs. The justice based on truth would establish peace in the
society.
11.2 Krishna Iyer J . in Jasraj Inder Singh v. Hemraj
Multanchand, (1977) 2 SCC 155 described truth and justice as
under:
“8. … Truth, like song, is whole, and half-truth can be
noise! Justice is truth, is beauty and the strategy of
RFA 784/2010 Page 71 of 99
healing injustice is discovery of the whole truth and
harmonising human relations. Law’s finest hour is not
in meditating on abstractions but in being the delivery
agent of full fairness. This divagation is justified by the
need to remind ourselves that the grammar of justice
according to law is not little litigative solution of isolated
problems but resolving the conflict in its wider bearings.”
11.3 In Union Carbide Corporation v. Union of India , (1989) 3
SCC 38, the Supreme Court described justice and truth to mean
the same. The observations of the Supreme Court are as under:
“30. …when one speaks of justice and truth, these words
mean the same thing to all men whose judgment is
uncommitted. Of Truth and Justice, Anatole France said :
“Truth passes within herself a penetrating force unknown
alike to error and falsehood. I say truth and you must
understand my meaning. For the beautiful words Truth
and Justice need not be defined in order to be
understood in their true sense. They bear within them a
shining beauty and a heavenly light. I firmly believe in
the triumph of truth and justice. That is what upholds me
in times of trial….”
11.4 In Mohanlal Shamji Soni v. Union of India, 1991 Supp
(1) SCC 271, the Supreme Court observed that the presiding
officer of a Court should not simply sit as a mere umpire at a
contest between two parties and declare at the end of the
combat who has won and who has lost and that there is a legal
duty of his own, independent of the parties, to take an active
role in the proceedings in finding the truth and administering
justice.
11.5 In Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC
421, the Supreme Court observed that to enable the Courts to
ward off unjustified interference in their working, those who
indulge in immoral acts like perjury, pre-variation and
motivated falsehoods have to be appropriately dealt with,
RFA 784/2010 Page 72 of 99
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 in Courts.
11.6 In A.S. Narayana Deekshitulu v. State of A.P., (1996) 9
SCC 548, the Supreme Court observed that from the ancient
times, the constitutional system depends on the foundation of
truth. The Supreme Court referred to Upanishads, Valmiki
Ramayana and Rig Veda.
11.7 In Mohan Singh v. State of M.P., (1999) 2 SCC 428 the
Supreme Court held that effort should be made to find the truth;
this is the very object for which Courts are created. To search it
out, the Court has to remove chaff from the grain. It has to
disperse the suspicious, cloud and dust out the smear of dust as all
these things clog the very truth. So long chaff, cloud and dust
remains, the criminals are clothed with this protective layer to
receive the benefit of doubt. So it is a solemn duty of the Courts,
not to merely conclude and leave the case the moment suspicions
are created. It is onerous duty of the Court, within permissible
.
limit to find out the truth It means, on one hand no innocent
man should be punished but on the other hand to see no person
committing an offence should get scot free. There is no
mathematical formula through which the truthfulness of a
prosecution or a defence case could be concretised. It would
depend on the evidence of each case including the manner of
deposition and his demeans, clarity, corroboration of witnesses
and overall, the conscience of a judge evoked by the evidence on
record. So Courts have to proceed further and make genuine
efforts within judicial sphere to search out the truth and not stop
at the threshold of creation of doubt to confer benefit of doubt.
11.8 In Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3
SCC 374, the Supreme Court observed that right from the
inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the main
purposes underlying existence of Courts of justice.
RFA 784/2010 Page 73 of 99
11.9 In Himanshu Singh Sabharwal v. State of Madhya
Pradesh, (2008) 3 SCC 602, the Supreme Court held that the trial
should be a search for the truth and not a bout over technicalities.
The Supreme Court’s observation are as under:
“5. … 31. In 1846, in a judgment which Lord Chancellor
Selborne would later describe as ‘one of the ablest
judgments of one of the ablest judges who ever sat in this
Court’, Vice-Chancellor Knight Bruce said
[Pearse v. Pearse, (1846) 1 De G&Sm. 12 : 16 LJ Ch 153 :
63 ER 950 : 18 Digest (Repl.) 91, 748] : (De G&Sm. pp. 28-
29):
“31.The discovery and vindication and establishment
of truth are main purposes certainly of the existence
of courts of justice; still, for the obtaining of these
objects, which, however valuable and important,
cannot be usefully pursued without moderation,
cannot be either usefully or creditably pursued
unfairly or gained by unfair means, not every channel
is or ought to be open to them. The practical
inefficacy of torture is not, I suppose, the most
weighty objection to that mode of examination,…
Truth, like all other good things, may be loved
unwisely—may be pursued too keenly—may cost too
much.
xxx xxx xxx
35. Courts have always been considered to have an
overriding duty to maintain public confidence in the
administration of justice—often referred to as the duty
to vindicate and uphold the ‘majesty of the law’.
xxx xxx xxx
38. Since the object is to mete out justice and to
convict the guilty and protect the innocent, the trial
should be a search for the truth and not a bout over
technicalities, and must be conducted under such
rules as will protect the innocent, and punish the
guilty. ”
(Emphasis Supplied)
RFA 784/2010 Page 74 of 99
11.10 In Ritesh Tewari v. State of U.P., (2010) 10 SCC 677, the
Supreme Court reproduced often quoted quotation: ‘Every trial is
voyage of discovery in which truth is the quest’
11.11 In Maria Margarida Sequeria Fernandes v. Erasmo Jack
de Sequeria, (2012) 5 SCC 370, the Supreme Court again
highlighted the significance of truth and observed that the truth
should be the guiding star in the entire legal process and it is the
The
duty of the Judge to discover truth to do complete justice.
Supreme Court stressed that Judge has to play an active role to
discover the truth and he should explore all avenues open to him
. The Supreme Court observed as
in order to discover the truth
under:
“32. In this unfortunate litigation, the Court’s serious
endeavour has to be to find out where in fact the truth lies.
33. The truth should be the guiding star in the entire
.
judicial processTruth alone has to be the foundation of
justice. The entire judicial system has been created only to
discern and find out the real truth. Judges at all levels
have to seriously engage themselves in the journey of
discovering the truth . That is their mandate, obligation and
bounden duty. Justice system will acquire credibility only
when people will be convinced that justice is based on the
foundation of the truth.
xxx xxx xxx
35.What people expect is that the Court should discharge its
obligation to find out where in fact the truth lies. Right from
inception of the judicial system it has been accepted that
discovery, vindication and establishment of truth are the
main purposes underlying the existence of the courts of
justice.
xxx xxx xxx
39. …A judge in the Indian System has to be regarded as
failing to exercise its jurisdiction and thereby discharging
its judicial duty, if in the guise of remaining neutral, he opts
to remain passive to the proceedings before him. He has to
always keep in mind that “every trial is a voyage of
RFA 784/2010 Page 75 of 99
discovery in which truth is the quest”. I order to bring on
record the relevant fact, he has to play an active role; no
doubt within the bounds of the statutorily defined procedural
law.
41. World over, modern procedural Codes are
increasingly relying on full disclosure by the parties.
Managerial powers of the Judge are being deployed to
ensure that the scope of the factual controversy is
minimised.
xxx xxx xxx
42. In civil cases, adherence to Section 30 CPC would
also help in ascertaining the truth. It seems that this
provision which ought to be frequently used is rarely
pressed in service by our judicial officers and judges…..”
xxx xxx xxx
52. Truth is the foundation of justice. It must be the
endeavour of all the judicial officers and judges to
ascertain truth in every matter and no stone should be left
unturned in achieving this object. Courts must give greater
emphasis on the veracity of pleadings and documents in
order to ascertain the truth.
”
(Emphasis supplied)
11.12 In A. Shanmugam v. Ariya Kshatriya , (2012) 6 SCC
430, the Supreme Court held that the entire journey of a judge
is to discern the truth from the pleadings, documents and
arguments of the parties. Truth is the basis of justice delivery
system . The Supreme Court laid down the following principles:
“43. On the facts of the present case, following principles
emerge:
43.1. It is the bounden duty of the Court to uphold the
truth and do justice.
43.2. Every litigant is expected to state truth before the
law court whether it is pleadings, affidavits or evidence.
Dishonest and unscrupulous litigants have no place in
law courts.
43.3. The ultimate object of the judicial proceedings is to
RFA 784/2010 Page 76 of 99
discern the truth and do justice. It is imperative that
pleadings and all other presentations before the court
should be truthful.
43.4. Once the court discovers falsehood, concealment,
distortion, obstruction or confusion in pleadings and
documents, the court should in addition to full restitution
impose appropriate costs. The court must ensure that
there is no incentive for wrong doer in the temple of
justice. Truth is the foundation of justice and it has to
be the common endeavour of all to uphold the truth and
no one should be permitted to pollute the stream of
justice.
43.5. It is the bounden obligation of the Court to
neutralize any unjust and/or undeserved benefit or
advantage obtained by abusing the judicial process.”
(Emphasis supplied)
11.13 In Ramesh Harijan v. State of Uttar Pradesh, (2012) 5
SCC 777, the Supreme Court emphasized that it is the duty of
the Court to unravel the truth under all circumstances.
11.14 In Bhimanna v. State of Karnataka, (2012) 9 SCC 650,
the Supreme Court again stressed that the Court must
endeavour to find the truth. The observations of the Supreme
Court are as under:
“28.The court must endeavour to find the truth. There
would be “failure of justice” not only by unjust
conviction but also by acquittal of the guilty, as a result
of unjust failure to produce requisite evidence. Of course,
the rights of the accused have to be kept in mind and
safeguarded but they should not be overemphasised to
the extent of forgetting that the victims also have rights.”
11.15 In the recent pronouncement in Kishore Samrite v. State
of U.P., (2013) 2 SCC 398, the Supreme Court observed that
truth should become the ideal to inspire the Courts to pursue.
This can be achieved by statutorily mandating the Courts to
become active seekers of truth. The observations of Supreme
Court are as under:
RFA 784/2010 Page 77 of 99
“34. It has been consistently stated by this Court that the
entire journey of a Judge is to discern the truth from the
pleadings, documents and arguments of the parties, as
truth is the basis of the Justice Delivery System.
35. With the passage of time, it has been realised that
people used to feel proud to tell the truth in the Courts,
irrespective of the consequences but that practice no
longer proves true, in all cases. The Court does not sit
simply as an umpire in a contest between two parties and
declare at the end of the combat as to who has won and
who has lost but it has a legal duty of its own,
independent of parties, to take active role in the
proceedings and reach at the truth, which is the
foundation of administration of justice. Therefore, the
truth should become the ideal to inspire the courts to
pursue. This can be achieved by statutorily mandating
the Courts to become active seekers of truth. To enable
the courts to ward off unjustified interference in their
working, those who indulge in immoral acts like perjury,
prevarication and motivated falsehood, must be
appropriately dealt with. The parties must state forthwith
sufficient factual details to the extent that it reduces the
ability to put forward false and exaggerated claims and a
litigant must approach the Court with clean hands. It is
the bounden duty of the Court to ensure that dishonesty
and any attempt to surpass the legal process must be
effectively curbed and the Court must ensure that there is
no wrongful, unauthorised or unjust gain to anyone as a
result of abuse of the process of the Court. One way to
curb this tendency is to impose realistic or punitive
costs.” (Emphasis supplied)
12.4 Indian Evidence Act does not define ‘truth’. It defines
what facts are relevant and admissible; and how to prove them.
The proviso to Section 165 provides that the judgment must be
based on duly proved relevant facts. Section 3, 114 and 165 of
the Indian Evidence Act lay down the important principles to
aid the Court in its quest for duly proved relevant fact…”
RFA 784/2010 Page 78 of 99
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Aid of Section 165 of the Indian Evidence Act in discovery of truth
12. In Ved Parkash Kharbanda v. Vimal Bindal (supra), this Court
also examined the scope of Section 165 of the Indian Evidence Act,
1872 to discover the truth to do complete justice between the parties.
This Court also discussed the importance of Trial Courts in the
dispensation of justice. Relevant portion of the said judgment is
reproduce hereunder:
“15. Section 165 of the Indian Evidence Act, 1872
15.1 Section 165 of the Indian Evidence Act, 1872
invests the Judge with plenary powers to put any question to
any witness or party; in any form, at any time, about any fact
relevant or irrelevant. Section 165 is intended to arm the Judge
with the most extensive power possible for the purpose of
getting at the truth. The effect of this section is that in order to
get to the bottom of the matter before it, the Court will be able
to look at and inquire into every fact and thus possibly acquire
valuable indicative evidence which may lead to other evidence
strictly relevant and admissible. The Court is not, however,
permitted to found its judgment on any but relevant statements.
15.2 Section 165 of the Indian Evidence Act, 1872 reads
as under:
“Section 165. Judge’s power to put questions or order
production.-
The Judge may, in order to discover or obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any
time, of any witness, or of the parties, about any fact relevant or
irrelevant; and may order the production of any document or
thing; and neither the parties nor their agents shall be entitled
to make any objection to any such question or order, nor,
without the leave of the Court, to cross-examine any witness
upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared
RFA 784/2010 Page 79 of 99
by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to
compel any witness to answer any question or to produce any
document which such witness would be entitled to refuse to
answer or produce under Sections 121 to 131, both inclusive, if
the question were asked or the document were called for by the
adverse party; nor shall the Judge ask any question which it
would be improper for any other person to ask under Section
148 or 149 ; nor shall he dispense with primary evidence of any
document, except in the cases herein before excepted.”
15.3 The object of a trial is, first to ascertain truth by
the light of reason, and then, do justice upon the basis of the
truth and the Judge is not only justified but required to elicit a
fact, wherever the interest of truth and justice would suffer, if
he did not.
15.4 The Judge contemplated by Section 165 is not a
mere umpire at a wit-combat between the lawyers for the
parties whose only duty is to enforce the rules of the game and
declare at the end of the combat who has won and who has lost.
He is expected, and indeed it is his duty, to explore all avenues
open to him in order to discover the truth and to that end,
question witnesses on points which the lawyers for the parties
have either overlooked or left obscure or willfully avoided. A
Judge, who at the trial merely sits and records evidence without
caring so to conduct the examination of the witnesses that every
point is brought out, is not fulfilling his duty.
15.5 The framers of the Act, in the Report of the Select
st
Committee published on 31 March, 1871 along with the Bill
settled by them, observed:
“In many cases, the Judge has to get at the truth, or as near to
it as he can by the aid of collateral inquiries, which may
incidentally tend to something relevant; and it is most unlikely
that he should ever wish to push an inquiry needlessly, or to go
into matters not really connected with it. We have accordingly
thought it right to arm Judges with a general power to ask any
questions upon any facts, of any witnesses, at any stage of the
proceedings, irrespectively of the rules of evidence binding on
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the parties and their agents, and we have inserted in the Bill a
distinct declaration that it is the duty of the Judge, especially in
criminal cases, not merely to listen to the evidence put before
him but to inquire to the utmost into the truth of the matter.”
15.6 Cunningham, Secretary to the Council of the
Governor – General for making Laws and Regulations at the
time of the passing of the Indian Evidence Act stated:
“It is highly important that the Judge should be armed with full
power enabling him to get at the facts. He may, accordingly,
subject to conditions to be immediately noticed, ask any
question he pleases, in any form, at any stage of the
proceedings, about any matter relevant or irrelevant, and he
may order the production of any document or thing. No
objection can be taken to any such question or order, nor are
the parties entitled, without Court’s permission to cross-
examine on the answers given.”
15.7 The relevant judgments relating to Section 165 of
the Indian Evidence Act, 1872 are as under:-
15.7.1 The Supreme Court in Ram Chander v. State of
Haryana , (1981) 3 SCC 191 observed that under Section 165,
the Court has ample power and discretion to control the trial
effectively. While conducting trial, the Court is not required
to sit as a silent spectator or umpire but to take active part
within the boundaries of law by putting questions to witnesses
in order to elicit the truth and to protect the weak and the
innocent. It is the duty of a Judge to discover the truth and for
that purpose he may “ask any question, in any form, at any
time, of any witness, or of the parties, about any fact, relevant
or irrelevant”.
15.7.2 In Ritesh Tewari v. State of Uttar Pradesh , (2010)
10 SCC 677, the Supreme Court held that every trial is a
voyage of discovery in which truth is the quest . The power
under Section 165 is to be exercised with the object of
subserving the cause of justice and public interest, and for
getting the evidence in aid of a just decision and to uphold the
truth. It is an extraordinary power conferred upon the Court
to elicit the truth and to act in the interest of justice . The
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purpose being to secure justice by full discovery of truth and an
accurate knowledge of facts, the Court can put questions to the
parties, except those which fall within exceptions contained in
the said provision itself.
15.7.3 In Zahira Habibulla H. Sheikh v. State of
Gujarat , (2004) 4 SCC 158, the Supreme Court held that
Section 165 of the Indian Evidence Act and Section 311 of the
Code of Criminal Procedure confer vast and wide powers on
Presiding Officers of Court to elicit all necessary materials by
playing an active role in the evidence collecting process. The
Judge can control the proceedings effectively so that ultimate
objective i.e. truth is arrived at. The power of the Court under
Section 165 of the Evidence Act is in a way complementary to
its power under Section 311 of the Code. The Section consists
of two parts i.e. (i) giving a discretion to the Court to examine
the witness at any stage and (ii) the mandatory portion which
compels the Courts to examine a witness if his evidence
appears to be essential to the just decision of the Court. The
second part of the section does not allow any discretion but
obligates and binds the Court to take necessary steps if the
fresh evidence to be obtained is essential to the just decision of
the case, essential to an active and alert mind and not to one
which is bent to abandon or abdicate. Object of the Section is to
enable the Court to arrive at the truth irrespective of the fact
that the prosecution or the defence has failed to produce some
evidence which is necessary for a just and proper disposal of
the case. Though justice is depicted to be blind-folded, as
popularly said, it is only a veil not to see who the party before it
is while pronouncing judgment on the cause brought before it
by enforcing law and administering justice and not to ignore or
turn the mind/attention of the Court away from the truth of the
cause or lis before it, in disregard of its duty to prevent
miscarriage of justice. Doing justice is the paramount
consideration and that duty cannot be abdicated or diluted and
diverted by manipulative red herrings.
15.7.4 In State of Rajasthan v. Ani , (1997) 6 SCC162,
the Supreme Court held that Section 165 of the Indian
Evidence Act confers vast and unrestricted powers on the
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Court to elicit truth. Reticence may be good in many
circumstances, but a Judge remaining mute during trial is not
an ideal situation. A taciturn Judge may be the model
caricatured in public mind. But there is nothing wrong in his
becoming active or dynamic during trial so that criminal justice
being the end could be achieved. A Judge is expected to
actively participate in the trial to elicit necessary materials
from witnesses in the appropriate context which he feels
necessary for reaching the correct conclusion .
15.7.5 In Mohanlal Shamji Soni v. Union of India , 1991
Supp. (1) SCC 271, referring to Section 165 of the Indian
Evidence Act and Section 311 of the Code of Criminal
Procedure, the Supreme Court stated that the said two sections
are complementary to each other and between them, they
confer jurisdiction on the Judge to act in aid of justice. It is a
well-accepted and settled principle that a Court must discharge
its statutory functions – whether discretionary or obligatory –
according to law in dispensing justice because it is the duty of a
Court not only to do justice but also to ensure that justice is
being done.
15.7.6 In Jamatraj Kewalji Govani v. State of
Maharashtra , AIR 1968 SC 178, the Supreme Court held that
Section 165 of the Indian Evidence Act and Section 540 of the
Code of Criminal Procedure, 1898 confer jurisdiction on the
Judge to act in aid of justice. In criminal jurisdiction, statutory
law confers a power in absolute terms to be exercised at any
stage of the trial to summon a witness or examine one present
in Court or to recall a witness already examined, and makes
this the duty and obligation of the Court provided the just
decision of the case demands it.
15.7.7 In Sessions Judge Nellore Referring Officer v.
Intha Ramana Reddy , 1972 CriLJ 1485, the Andhra Pradesh
High Court held that every trial is a voyage of discovery in
which truth is the quest. It is the duty of a presiding Judge to
explore every avenue open to him in order to discover the
truth and to advance the cause of justice. For that purpose he
is expressly invested by Section 165 of the Evidence Act with
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the right to put questions to witnesses. Indeed the right given to
a Judge is so wide that he may ask any question he pleases, in
any form at any time, of any witness, or of the parties about any
fact, relevant or irrelevant.
16. Importanceof Trial Courts
The Law Commission of India headed by H.R. Khanna, J. in its
Seventy Seventh Report relating to the ‘ Delays and Arrears in
Trial Courts’ dealt with the importance of Trial Courts in the
justice delivery system. The relevant portion of the said Report
is reproduced as under:
-“If an evaluation were made of the importance of the role of
the different functionaries who play their part in the
administration of justice, the top position would necessarily
have to be assigned to the Trial Court Judge. He is the key-
man in our judicial system, the most important and influential
participant in the dispensation of justice. It is mostly with the
Trial Judge rather than with the appellate Judge that the
members of the general public come in contact, whether as
parties or as witnesses . The image of the judiciary for the
common man is projected by the Trial Court Judges and this, in
turn depends upon their intellectual, moral and personal
qualities.”
– Personality of Trial Court Judges
“Errors committed by the Trial Judge who is not of the right
caliber can sometimes be so crucial that they change the entire
course of the trial and thus result in irreparable miscarriage of
justice. Apart from that, a rectification of the error by the
appellate Court which must necessarily be after lapse of a long
time, can hardly compensate for the mischief which resulted
from the error committed by the Trial Judge.”
– The ‘Upper Court’ Myth
“The notion about the provisional nature of the Trial Court
decisions being subject to correction in appeal, or what has
been called the “upper-Court myth” ignores the realities of the
situation. In spite of the right of appeal, there are many cases
in which appeals are not filed. This apart, the appellate
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Courts having only the written record before them are normally
reluctant to interfere with the appraisement of evidence of
witnesses by the Trial Judges who have had the advantage of
looking at the demeanour of the witnesses. The appellate
Court, it has been said, operates in the partial vacuum of the
printed record. A stenographic transcript fails to reproduce
tones of voice and hesitations of speech that often make a
sentence mean the reverse of what the mere words signify. The
best and most accurate record of oral testimony is like a
dehydrated peach; it has neither the substance nor the flavor of
the peach before it was dried.”
13. Dr. Arun Mohan in his book Justice, Courts and Delays , has
discussed the consequences of litigants raising false claims and
observed that unless these shortcomings in our procedural laws are
identified and a solution found, Court procedures will continue to be
misused making it impossible for the system to render speedy justice.
The relevant portion of the said book is reproduced hereunder:
“Misuse of Procedure
2. While knowingly false plaints are fewer in number than
knowingly false defences, they are very much there. False
defences are taken up in, if one may say, 80 per cent or so of
the cases and are basically of three types:
1. unnecessary technical and hyper technical issues;
2. denials or ‘putting the plaintiff to prove’ facts, which
are within the knowledge of the defendant; or
3. positive defences, which are based on false facts or
forged/fabricated documents.
xxx xxx xxx
8. Assume a suit for recovery of Rs.10,000 is filed by A
against B on the ground that the money loaned has not been
returned. If the payment had been in cash, the factum would
have been denied. If it is by a cheque and the truth is plain that
the money has not been returned, yet the Written Statement can
raise pleas such as:
1. The amount was returned in cash;
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2. The money was in fact ‘shagun’/gift given at the time
of the marriage anniversary/birthday of B;
3. It was repayment of an earlier cash loan given by B to
A;
4. A is a money lender with no licence to practice; the
suit is barred; or
5. The money was expense money and professional
charges paid to B for introducing A to the powers that be
at the State capital.
There may even be either a plain denial or similar
stories/explanation for any written document that may have
been executed.
9. Another illustration is of trespass, which in metropolitan
towns, particularly with the value of real estate being what it is,
is common. As an instance, B forcibly trespasses into A’s house
and when A files a suit in the civil court for recovery of
possession & mesne profits against B, the Written Statement by
B reads:
1. It is my house which was so bequeathed to me by the
deceased father of A;
2. I am a tenant protected by the Rent Control
legislation; A is not in the habit of issuing rent receipts;
3. I am a licensee and have carried out works of
permanent character with the consent of A. My licence
is, therefore, irrevocable; or
4. I am holding under an agreement to sell.
He may even file forged & fabricated documents to support the
defence.
xxx xxx xxx
11. Suits for ejectment of a tenant make another illustration.
B’s lease for A’s house expires by efflux of time. B does not
vacate and when A sues for ejectment, B takes defences such
as:
1. The lease was/is a perpetual lease;
2. The purported notice to quit (for a month to month
tenancy) was never served and, in any case, was
defective inasmuch as the tenancy month was different
from that mentioned in the Notice to Quit;
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3. ‘B’ is neither an owner nor the landlord of the leased
property and has, thereore, no locus standi to institute
the suit; or
4. As the advance rent for the next five years was paid in
cash, there can be no termination of tenancy or a suit for
ejectment.
The result is ten years’ delay, at the end of which B tells
A to give up the claim for mesne profits and take possession or
else litigate for another ten.
xxx xxx xxx
17. Coming next to Wills, a person may have died leaving a
registered Will, yet when Probate is sought, all kinds of please
are raised. A false (later) Will may be propounded to obstruct
& delay the claim. If the bulk or a larger share of the property
is in occupation of one person, and the others are either not
getting the usufruct or are (by reason of their own placement)
desperate for the value of their share, that person delays and
obstructs. There is plain abuse of procedure with continued
deprivation and resultant injustice. Records of the pending
litigation will show that decades pass by. Is continued
indecisiveness not a denial of the right of partition? Is it not
giving undue advantage to those who are occupying the
property more than their own share/entitlement?
xxx xxx xxx
24. There are also instances of many a civil suit being filed
with the plaintiff knowing himself that the claim is false and
that the purpose of the suit is only to extort some money and
other material benefit from the defendant. Thus, it is not only
false and ingenious defences as have been pointed out above,
but there are also plaintiffs who by exercising a bit of ingenuity
coupled with falsehood, file one or more suits or institute other
proceedings. The litigation then not only saps the other party of
his energy & expense but also causes a load on his mind which
ruins him in more ways than one. Seeing the continuing loss,
the adversary (defendant) has little option but to ‘settle’ by
conceding to an illegal demand. The process of law comes to be
used as a weapon for extortion.
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25. One may examine how much truth ultimately prevails in
our judicial system. All sorts of false claims/defences are put
forward and when the person (in the right) is in the witness box,
he is cross-examined not with a view to elicit the truth but to
intimidate or at least bring on record errors on which the
ultimate judgment can be based. Can an average person be
really expected to withstand such an onslaught? After all, it is
not a test of skills for a post-graduate degree. A simple error or
fault and the result can be the loss of his house. And, all this
can take place because there is no pinning down to
responsibility of the one making a claim/defence that,
ultimately, is found to be without merit or even false .
xxx xxx xxx
29. If a conversation between a defendant served with
summons of a suit for possession and his lawyer were to be
eavesdropped upon, the listener would hardly be in for any
surprise. A lawyer may advise him that he has no defence, yet
the defendant would ask:
For how many years can you drag it? How much will it
cost me in terms of Rupees per month/year? What will be the
ultimate result?
The lawyer may give honest answers, whereupon the
defendant calculates: If that be so, then it is profitable for me to
litigate. Further, if you can drag it longer, may be I can give
you even better terms. I now leave it to your skills at delaying.
Such conversation speaks for itself. At other times, if may
be that the defendant is receiving advice on how profitable it
will for him to raise a false defence and not ‘settle’ for a
reasonable time to vacate. He may even be receiving ‘advice’
on the tactics to be deployed to achieve delays. Whichever way
one may look at it, it is adding both to the number of cases and
the size of the controversy in each and consequently, to court
delays.
30. If a survey was to be carried out as to how many
plaintiffs in suits for possession gave up claims for mesne
profits or paid moneys on the side in order to compromise and
recover possession of the property-and did so only because the
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judicial system was failing to render justice in proper time – the
results would be startling. Similarly, a survey of the
‘settlements’ done by giving up a claim (of any type) or
acceding to a false claim because of harassment caused or
doing so under the fear of the mafia, would reveal no different
results.
31. Unfortunately, such instances remain a matter of hearsay
and do not find their way sot the statistics books so as to attract
attention of the press, the lawmakers and the judiciary.
However, the fact remains that anybody who has been involved
with the judicial system as a lawyer or as a litigant or even a
person otherwise concerned, would know where the ground
realities lie.
xxx xxx xxx
34. All this discussion about misuse of procedure in this
chapter as also in the later chapters points to one and one
factor only. It is that unless these shortcomings in our
procedural laws are identified and a solution found, court
procedures will continue to be misused making it impossible for
the system – irrespective of the size to which we may
enhance/augment its capacity – to render speedy justice and
justice for the citizens will remain a far cry.”
(Emphasis supplied)
15. Summary of Principles
15.1. Section 209 of the Indian Penal Code makes dishonestly
making a false claim in a Court as an offence punishable with
imprisonment upto two years and fine.
15.2. The essential ingredients of an offence under Section 209 are:
(i)The accused made a claim; (ii)The claim was made in a Court of
Justice; (iii) The claim was false, either wholly or in part; (iv)That the
accused knew that the claim was false; and (v)The claim was made
fraudulently, dishonestly, or with intent to injure or to annoy any
person.
15.3. A litigant makes a ‘ claim ’ before a Court of Justice for the
purpose of Section 209 when he seeks certain relief or remedies from
the Court and a ‘ claim ’ for relief necessarily impasses the ground for
obtaining that relief. The offence is complete the moment a false
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claim is filed in Court.
15.4. The word “ claim ” in Section 209 of the IPC cannot be read as
being confined to the prayer clause. It means the “ claim ” to the
existence or non-existence of a fact or a set of facts on which a party
to a case seeks an outcome from the Court based on the substantive
law and its application to facts as established. To clarify, the word
“ claim ” would mean both not only a claim in the affirmative to the
existence of fact(s) as, to illustrate, may be made in a plaint, writ
petition, or an application; but equally also by denying an averred fact
while responding (to the plaint/petition, etc.) in a written statement,
counter affidavit, a reply, etc. Doing so is making a “ claim ” to the
non-existence of the averred fact. A false “ denial ”, except when the
person responding is not aware, would constitute making a “ claim ” in
Court under Section 209 IPC.
15.5. The word ‘ claim ’ for the purposes of Section 209 of the Penal
Code would also include the defence adopted by a defendant in the
suit. The reason for criminalising false claims and defences is that the
plaintiff as well as the defendant can abuse the process of law by
deliberate falsehoods, thereby perverting the course of justice and
undermining the authority of the law.
15.6. The words “with intent to injure or annoy any person” in
Section 209 means that the object of injury may be to defraud a third
party, which is clear from the Explanation to Clause 196 in the Draft
Code namely: “It is not necessary that the party to whom the offender
intends to cause wrongful loss or annoyance should be the party
against whom the suit was instituted.”
15.7. Section 209 uses the words ‘ Court of Justice ’ as distinguished
from a “ Court of Justice having jurisdiction .” It is therefore
immaterial whether the Court in which the false claim was instituted
had jurisdiction to try the suit or not.
15.8. The prosecution has to prove that the accused made a false
claim. A mere proof that the accused failed to prove his claim in the
civil suit or that Court did not rely upon his evidence on account of
discrepancies or improbabilities is not sufficient.
15.9. This section is not limited to cases where the whole claim made
by the defendant is false. It applies even where a part of the claim is
false. In Queen-Empress v. Bulaki Ram (supra), the accused brought
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a suit against a person to recover Rs. 88-11-0 alleging that the whole
of the amount was due from the defendant. The defendant produced a
receipt for a sum of Rs. 71-3-3, and this amount was proved to have
been paid to the accused. The accused was thereupon prosecuted
and convicted under this section. It was contended on his behalf that
because a part of the accused’s claim was held to be well-founded and
due and owing, he could not be convicted under this section. It was
held that the conviction was right. Straight J ., said: … “if that view
were adopted, a man having a just claim against another for Rs. 5,
may make claim for Rs. 1,000, the Rs. 995 being absolutely false, and
he may escape punishment under this section.” The law never
intended anything so absurd. These provisions were made by those
who framed this most admirable Code, with full knowledge that this
was a class of offences very common in this country.
15.10.The Law Commission gave the following illuminating
examples of what they regarded to be “ false ” claims ( Indian Law
Commission’s Report at p 98 ):
“A lends Z money. Z repays it. A brings an action against Z for
the money, and affirms in his declaration that he lent the
money, and has never been repaid. On the trial A’s receipt is
produced. It is not doubted, A himself cannot deny, that he
asserted a falsehood in his declaration. Ought A to enjoy
impunity? Again: Z brings an action against A for a debt which
is really due. A’s plea is a positive averment that he owes Z
nothing. The case comes to trial; and it is proved by
overwhelming evidence that the debt is a just debt. A does not
even attempt a defence. Ought A in this case to enjoy impunity?
If, in either of the cases which we have stated, A were to suborn
witnesses to support the lie which he has put on the pleadings,
every one of these witnesses, as well as A himself, would be
liable to severe punishment. But false evidence in the vast
majority of cases springs out of false pleading, and would be
almost entirely banished from the Courts if false pleading could
be prevented.”
15.11.In both examples, it is obvious that the claims made by A were
entirely without factual foundation. In the first example, there was no
factual basis for A to claim for the money, as it had already been
repaid. In the second example, there was absolutely no factual basis
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raised by A to support his positive averment that he owed Z nothing.
It is clear from these examples cited by the Law Commission that the
mischief that the drafters intended to address under Section 209 of the
Indian Penal Code was that of making claims without factual
foundation.
15.12.Whether the litigant’s ‘ claim ’ is false, is not considered merely
from whatever he pleads (or omits to plead): that would be to elevate
form over substance. To make out the offence, the Court does not
merely inspect how a litigant’s pleadings have been drafted or the
case has been presented. The real issue to be considered is whether,
all said and done, the litigant’s action has a proper foundation which
entitles him to seek judicial relief.
15.13.The Law Commission used the term “ no just ground ” in
characterising a false claim, meaning thereby that the substance of a
party’s claim is crucial. The critical question, accordingly, is
whether there are any grounds, whether in law or in fact, to make a
claim even if they are not revealed in the pleadings itself.
15.14.There is distinction between claims that may be regarded as
being legally hopeless and claims that are false. For example, one may
characterise a claim that is based entirely on love and affection as
consideration as being hopeless in the light of the current state of
contract law, but one certainly cannot say that such a claim is false
because only the Courts can determine what constitutes good and
valuable consideration (or, more fundamentally, whether
consideration is necessary under contract law). This category of
claims, like many types of claims involving elements of illegality,
often involve closely intertwined, and often inseparable, issues of fact
and law. A Court should be slow to label these problematic cases as
false even if they are ultimately found to be hopeless.
15.15.Section 209 was enacted to preserve the sanctity of the Court of
Justice and to safeguard the due administration of law by deterring the
deliberate making of false claims. Section 209 was intended to deter
the abuse of Court process by all litigants who make false claims
fraudulently, dishonestly, or with intent to injure or annoy.
15.16.False claims delay justice and compromise the sanctity of a
Court of justice as an incorruptible administrator of truth and a bastion
of rectitude.
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15.17.False claims cause direct injury to honest litigants. But this
injury appears to us to be only part, and perhaps not the greatest part,
of the evil engendered by the practice. If there be any place where
truth ought to be held in peculiar honor, from which falsehood ought
to be driven with peculiar severity, in which exaggerations, which
elsewhere would be applauded as the innocent sport of the fancy, or
pardoned as the natural effect of excited passion, ought to be
discouraged, that place is Court of Justice .
15.18.The Law Commission considered punishing false claims as
indispensably necessary to the expeditious and satisfactory
administration of justice. The Law Commission, in this report,
observed that the litigants come before the Court, tell premeditated
and circumstantial lies before the Court for the purpose of preventing
or postponing the settlement of just demand, and that by so doing,
they incur no punishment whatever. Public opinion is vitiated by this
vicious state of the things. Men who, in any other circumstances,
would shrink from falsehood, have no scruple about setting up false
pleas against just demands. There is one place, and only one, where
deliberate untruths, told with the intent to injure, are not considered as
discreditable and that place is Court of Justice . Thus, the authority of
the Courts operate to lower the standard of morality, and to diminish
the esteem in which veracity is held and the very place which ought to
be kept sacred from misrepresentations such as would elsewhere be
venial, becomes the only place where it is considered as idle
scrupulosity to shrink from deliberate falsehood.
15.19.The Law Commission further observed that false claims will be
more common if it is unpunished than if it is punished appears as
certain as that rape, theft, embezzlement, would, if unpunished, be
more common than they now are. There will be no more difficulty in
trying charge of false pleading than in trying charge of false evidence.
The fact that statement has been made in pleading will generally be
more clearly proved than the fact that statement has been made in
evidence.
15.20.Section 209 was not intended to operate as a trap for lawyers or
litigants who may inadequately or incorrectly plead their case.
However, a lawyer having actual knowledge about the falsity of a
client’s claim (or after he subsequently acquires that knowledge), is
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not supposed to proceed to make that claim in Court and thereby,
allow the client to gain something that he is not legally entitled to, or
causes the adversary to lose something which he is legally entitled to.
A lawyer should decline to accept instructions and/or doubt his
client’s instructions if they plainly appear to be without foundation
(eg, lacking in logical and/or legal coherence). However, a lawyer is
not obliged to verify his client’s instructions with other sources unless
there is compelling evidence to indicate that it is dubious. The fact
that the opposing parties (or parties allied to them) dispute the
veracity of his client’s instructions is not a reason for a lawyer to
disbelieve or refuse to act on those instructions, and a lawyer should
not be faulted if there are no reasonable means of objectively
assessing the veracity of those instructions.
15.21.Filing of false claims in Courts aims at striking a blow at the
rule of law and no Court can ignore 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 claims.
15.22.The Courts of law are meant for imparting justice between the
parties. One who comes to the Court, must come with clean hands.
More often than not, process of the Court is being abused. Property-
grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous
persons from all walks of life find the Court-process a convenient
lever to retain the illegal gains indefinitely. A person, who’s case is
based on falsehood, has no right to approach the Court. He can be
summarily thrown out at any stage of the litigation.
15.23.The disastrous result of leniency or indulgence in invoking
Section 209 is that it sends out wrong signals. It creates almost a
licence for litigants and their lawyers to indulge in such serious
malpractices because of the confidence that no action will result.
15.24.Unless lawlessness which is all pervasive in the society is not
put an end with an iron hand, the very existence of a civilized society
is at peril if the people of this nature are not shown their place. Further
if the litigants making false claims are allowed to go scot free, every
law breaker would violate the law with immunity. Hence, deterrent
action is required to uphold the majesty of law. The Court would be
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failing in its duties, if false claims are not dealt with in a manner
proper and effective for maintenance of majesty of Courts as
otherwise the Courts would lose its efficacy to the litigant public.
15.25.Truth is foundation of Justice. Dispensation of justice, based on
truth, is an essential and inevitable feature in the justice delivery
system. Justice is truth in action.
15.26.It is the duty of the Judge to discover truth to do complete
justice. The entire judicial system has been created only to discern and
find out the real truth.
15.27.The Justice based on truth would establish peace in the society.
For the common man truth and justice are synonymous. So when
truth fails, justice fails. People would have faith in Courts when truth
alone triumphs.
15.28.Every trial is a voyage of discovery in which truth is the quest.
Truth should be reigning objective of every trial. The Judge has to
play an active role to discover the truth and he should explore all
avenues open to him in order to discover the truth.
15.29.The object of a trial is, first to ascertain truth by the light of
reason, and then, do justice upon the basis of the truth and the Judge is
not only justified but required to elicit a fact, wherever the interest of
truth and justice would suffer, if he did not.
15.30. Section 165 of the Indian Evidence Act, 1872 invests the Judge
with plenary powers to put any question to any witness or party; in
any form, at any time, about any fact relevant or irrelevant. Section
165 is intended to arm the Judge with the most extensive power
possible for the purpose of getting at the truth. The effect of this
Section is that in order to get to the bottom of the matter before it, the
Court will be able to look at and inquire into every fact and thus
possibly acquire valuable indicative evidence which may lead to other
evidence strictly relevant and admissible. The Court is not, however,
permitted to found its judgment on any but relevant statements.
15.31. The Judge contemplated by Section 165 is not a mere umpire at
a wit-combat between the lawyers for the parties whose only duty is to
enforce the rules of the game and declare at the end of the combat
who has won and who has lost. He is expected, and indeed it is his
duty, to explore all avenues open to him in order to discover the truth
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and to that end, question witnesses on points which the lawyers for the
parties have either overlooked or left obscure or wilfully avoided. A
Judge, who at the trial merely sits and records evidence without caring
so to conduct the examination of the witnesses that every point is
brought out, is not fulfilling his duty.
15.32.The Trial Judge is the key-man in the judicial system and he is
in a unique position to strongly impact the quality of a trial to affect
system’s capacity to produce and assimilate truth. The Trial Judge
should explore all avenues open to him in order to discover the truth.
Trial Judge has the advantage of looking at the demeanour of the
witnesses. In spite of the right of appeal, there are many cases in
which appeals are not filed. It is mostly with the Trial Judge rather
than with the appellate Judge that the members of the general public
come in contact, whether as parties or as witnesses.
16. Conclusions
16.1 Section 209 of the Indian Penal Code, is a salutary provision
enacted to preserve the sanctity of the Courts and to safeguard the
administration of law by deterring the litigants from making the false
claims. However, this provision has been seldom invoked by the
Courts. The disastrous result of not invoking Section 209 is that the
litigants indulge in false claims because of the confidence that no
action will be taken.
16.2 Making a false averment in the pleading pollutes the stream of
justice. It is an attempt at inviting the Court into passing a wrong
judgment and that is why it has been be treated as an offence.
16.3 False evidence in the vast majority of cases springs out of false
pleading, and would entirely banish from the Courts if false pleading
could be prevented.
16.4 Unless the judicial system protects itself from such wrongdoing
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by taking cognizance, directing prosecution, and punishing those
found guilty, it will be failing in its duty to render justice to the
citizens.
16.5 The justice delivery system has to be pure and should be such
that the persons who are approaching the Courts must be afraid of
making false claims.
16.6 To enable the Courts to ward off unjustified interference in their
working, those who indulge in immoral acts like false claims 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.
16.7 Whenever a false claim is made before a Court, it would be
appropriate, in the first instance, to issue a show cause notice to the
litigant to show cause as to why a complaint be not made under
Section 340 Cr.P.C. for having made a false claim under Section 209
of the Indian Penal Code and a reasonable opportunity be afforded to
the litigant to reply to the same. The Court may record the evidence,
if considered it necessary.
16.8 If the facts are sufficient to return a finding that an offence
appears to have been committed and it is expedient in the interests of
justice to proceed to make a complaint under Section 340 Cr.P.C., the
Court need not order a preliminary inquiry. But if they are not and
there is suspicion, albeit a strong one, the Court may order a
preliminary inquiry. For that purpose, it can direct the State agency to
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investigate and file a report along with such other evidence that they
are able to gather.
16.9 Before making a complaint under Section 340 Cr.P.C., the
Court shall consider whether it is expedient in the interest of justice to
make a complaint.
16.10 Once it prima facie appears that an offence under Section 209
IPC has been made out and it is expedient in the interest of justice, the
Court should not hesitate to make a complaint under Section 340
Cr.P.C.
17. This Court hopes that the Courts below shall invoke Section
209 of the Indian Penal Code in appropriate cases to prevent the abuse
of process of law, secure the ends of justice, keep the path of justice
clear of obstructions and give effect to the principles laid down by the
Supreme Court in T. Arivandandam v. T.V. Satyapal (supra) , S.P.
Chengalvaraya Naida v. Jagannath (supra) , Dalip Singh v. State of
U.P. (supra) , Ramrameshwari Devi v. Nirmala Devi (supra) , Maria
Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra) ,
Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy
.
Sahara v. Union of India (supra)
18. This Court appreciates the assistance rendered by Mr. Sidharth
Luthra, learned amicus curiae and Mr. Suhail Dutt, learned senior
counsel for the appellant.
19. Copy of this judgment be sent to the District and Sessions
Judges for being circulated to the Courts below.
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20. Copy of this judgment be also sent to Delhi Judicial Academy.
The Delhi Judicial Academy shall sensitize the judges with respect to
the scope of Section 209 of the Indian Penal Code.
J.R. MIDHA, J.
JANUARY 22, 2016
dk/rsk/aj
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Karthik says
May 11, 2016 at 2:23 pmIs there any legal provision to sue a person involved in making false claims about a person or group? The claims are made in general social life and not in any court of law.
videv says
May 13, 2016 at 10:05 amDepending on type of false claims made in public, criminal or civil defamation, or both at same time. If claims are true, defamation won’t hold. Minor things may not hold on reason of freedom of expression of speech, if made by a journalist or blogger etc.