AARISH ASGAR QURESHI v. FAREED AHMED QURESHI & Anr.

Code of Criminal Procedure, 1973 – s.340 – Matrimonial proceedings – Certain averments made in anticipatory bail applications both before the Sessions Court as well as the High Court – Allegation that the statements made were knowingly false and were deliberately made in order to get favourable orders from the Court – Sessions Court held that the application filed by the applicant is premature – Same statements made in anticipatory bail application before the High Court – High Court found that statement made in the aforesaid application was false and therefore, a prima facie case was made out for perjury u/s.340 and that it would be expedient in the interest of justice to prosecute the appellant – On appeal, held: There should be something deliberate- a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise – In the facts of the present case, the statement made in the anticipatory bail application cannot be tested against unimpeachable evidence as evidence has not yet been led – High Court has not scrutinised any evidence as there was none to scrutinise – All that the High Court has seen is a preliminary investigation report, and that too by a police officer, together with a High Court order granting anticipatory bail, none of which can be said to be unimpeachable evidence against which it can clearly be stated that a prima facie case of perjury can be said to have been made out – Order of the High Court set aside. Allowing the appeal, the Court HELD: 1.1 There should be something deliberate- a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. In the facts of the present 400 AARISH ASGAR QURESHI v. FAREED AHMED QURESHI 401 case, it is clear that the statement made in the anticipatory bail application cannot be tested against unimpeachable evidence as evidence has not yet been led. Moreover, the report dated 12.11.2011 being a report, which is in the nature of a preliminary investigation report by the investigating officer filed only two days after the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable evidence contrary to the statements that have been made in the anticipatory bail application. Though the submission recorded by the High Court in para 3 of the order dated 30.11.2017 is from the aforesaid paragraph in the anticipatory bail application, yet, the High court made it clear that it was granting anticipatory bail principally because the F.I.R. annexed to the bail application does not show that there was sexual intercourse of the applicant with his wife during the course of their separation as a result of which it was not possible to assess whether the averment regarding the offence punishable under Section 377 of the I.P.C. is or is not substantiated. The High Court also recorded that considering that the husband and wife had resided together after marriage only for a very brief period, and that the husband was granted interim anticipatory bail, decided to grant final anticipatory bail on these grounds. It is clear, therefore, that both the grounds stated by the High Court would not suffice to initiate prosecution under Section 340 read with Section 195 (1)(b) of the Cr.P.C. [Para 10] [408-B-F]

1.2 In the facts of the present case, the High Court has not scrutinised any evidence as there was none to scrutinise. Further, all that the High Court has seen is a preliminary investigation report, and that too by a police officer, together with a High Court order granting anticipatory bail, none of which can be said to be unimpeachable evidence against which it can clearly be stated that a prima facie case of perjury can be said to have been made out. [Para 13] [409-F-H]

1.3 The arguments of learned counsel appearing on behalf of the appellant that the High Court has not satisfied itself that it is expedient in the interest of justice to proceed with the matter does not appear to be correct. Such finding is recorded. However, it is found otherwise that it ought not to have so proceeded. Equally, not impressed by the argument by the appellant’s counsel A B C D E F G H 402 SUPREME COURT REPORTS [2019] 3 S.C.R. A on suppression of the Sessions Court order. The impugned order of the High Court is set aside. [Paras 15, 16] [410-C-D] Sarvepalli Radhakrishnan University and Another v. Union of India and Others 2019 SCC OnLine SC 51 – distinguished.