Invoke IPC 209 on those making false complaints – Delhi HC judgment by Justice J R Midha

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

RFA 784/2010                    Page 14 of 99

 

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

RFA 784/2010                    Page 33 of 99

 

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

RFA 784/2010                    Page 34 of 99

 

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.

RFA 784/2010                    Page 35 of 99

 

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

RFA 784/2010                    Page 36 of 99

 

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

RFA 784/2010                    Page 37 of 99

 

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

RFA 784/2010                    Page 38 of 99

 

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:

RFA 784/2010                    Page 39 of 99

 

[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

RFA 784/2010                    Page 40 of 99

 

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

RFA 784/2010                    Page 41 of 99

 

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

RFA 784/2010                    Page 42 of 99

 

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

RFA 784/2010                    Page 43 of 99

 

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

RFA 784/2010                    Page 44 of 99

 

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

RFA 784/2010                    Page 45 of 99

 

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

RFA 784/2010                    Page 46 of 99

 

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

RFA 784/2010                    Page 47 of 99

 

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:

RFA 784/2010                    Page 49 of 99

 

“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

RFA 784/2010                    Page 50 of 99

 

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

RFA 784/2010                    Page 52 of 99

 

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

RFA 784/2010                    Page 53 of 99

 

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

RFA 784/2010                    Page 54 of 99

 

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

RFA 784/2010                    Page 56 of 99

 

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

RFA 784/2010                    Page 58 of 99

 

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

RFA 784/2010                    Page 59 of 99

 

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:

RFA 784/2010                    Page 60 of 99

 

“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

RFA 784/2010                    Page 62 of 99

 

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

RFA 784/2010                    Page 63 of 99

 

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

RFA 784/2010                    Page 64 of 99

 

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

RFA 784/2010                    Page 66 of 99

 

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

 

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

RFA 784/2010                    Page 80 of 99

 

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

RFA 784/2010                    Page 81 of 99

 

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

RFA 784/2010                    Page 82 of 99

 

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

RFA 784/2010                    Page 83 of 99

 

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

RFA 784/2010                    Page 84 of 99

 

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;

RFA 784/2010                    Page 85 of 99

 

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;

RFA 784/2010                    Page 86 of 99

 

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.

RFA 784/2010                    Page 87 of 99

 

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

RFA 784/2010                    Page 88 of 99

 

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

RFA 784/2010                    Page 89 of 99

 

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

RFA 784/2010                    Page 90 of 99

 

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

RFA 784/2010                    Page 91 of 99

 

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.

RFA 784/2010                    Page 92 of 99

 

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

RFA 784/2010                    Page 93 of 99

 

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

RFA 784/2010                    Page 94 of 99

 

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

RFA 784/2010                    Page 95 of 99

 

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

RFA 784/2010                    Page 96 of 99

 

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

RFA 784/2010                    Page 97 of 99

 

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.

RFA 784/2010                    Page 98 of 99

 

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

RFA 784/2010                    Page 99 of 99