The reply said the correspondence was under way. The file said it had closed two months earlier. Delhi High Court orders a perjury complaint
Justice Madhu Jain sets aside a Special Judge's refusal and directs a written complaint against six CBI officers, holding that successive drafts and file notings supply the reasonable foundation Section 340 requires.
In August 2016 the Central Bureau of Investigation told a court that it could not return documents seized from a discharged Indian Revenue Service officer, because correspondence with the administrative Ministry about further legal action was “under way”. By then the Ministry of Law and Justice had already advised that there was no reasonable ground to take the matter further, and the Department of Personnel and Training had passed that advice to the agency a month earlier. The Delhi High Court has held that the gap between what the file showed and what the reply said is enough to warrant a prosecution for giving false evidence, and has directed a complaint against six named officers.
How the case got here
The appellant is an officer of the Indian Revenue Service. He was prosecuted by the CBI under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, on the allegation that he had acquired assets disproportionate to his known sources of income. The charge sheet proceeded on a sanction order of November 2002.
In January 2016 a coordinate Bench of the Delhi High Court held that sanction invalid, deciding a criminal revision petition and a connected writ petition by a common judgment. In March 2016 the Special Judge discharged him.
The agency then considered challenging that judgment in the Supreme Court. On a reference made by the CBI about the proposed challenge, the Ministry of Law and Justice gave an opinion in June 2016 that there appeared to be no reasonable ground to agitate the matter further before a higher forum. The judgment extracts part of that opinion, and it is unusually direct: it records that the Supreme Court had criticised the investigation in the disproportionate assets case and observed that the calculation of disproportionate assets was wrong; that the Department had not satisfactorily rebutted those observations; and that it had admittedly accepted the fact of a defective and invalid sanction order. The Department of Personnel and Training communicated that opinion to the CBI by a letter of 1 July 2016.
A week later, in July 2016, the appellant applied to the Special Judge for release of the documents seized during the investigation — those relied on by the prosecution, those not relied on, and documents said to belong to other persons or public authorities.
The reply
On 2 August 2016 the CBI filed a reply signed by the first respondent. It raised no objection to returning the unrelied-upon documents, but opposed release of the rest. The passage the whole appeal turns on is set out in the judgment: that consequent to examination of the High Court's judgment, the correspondence with the administrative Ministry with respect to further legal action in the matter was under way, and that it would therefore not be prudent to return the seized documents as they might be required during further legal procedure. The reply added that if a final order were received from the Ministry to close the matter, the CBI would have no objection to returning the documents.
The difficulty is chronological. The Ministry's opinion was dated 8 June 2016 and the Department of Personnel and Training had conveyed it on 1 July 2016. On the appellant's case, by 2 August there was nothing under way: the question had been answered, and the answer was that the matter should not be taken further.
He applied under Section 340 of the Code of Criminal Procedure for a complaint to be made in respect of the statements in that reply. In October 2025 the Special Judge (PC Act) at Rouse Avenue dismissed the application, and this appeal under Section 380 of the Bharatiya Nagarik Suraksha Sanhita — the provision corresponding to Section 341 CrPC — followed.
What Section 340 asks
Section 340 is not a trial of perjury. It is the gateway: a court before which a statement was made may, after such preliminary inquiry as it thinks necessary, record a finding that it is expedient in the interests of justice that an inquiry be made into an offence affecting the administration of justice, and make a complaint in writing to a Magistrate. The threshold is whether there is a reasonable foundation for the allegation and whether an inquiry is expedient — not whether the offence is proved.
The offences alleged here are under Section 191 read with Section 193 of the Penal Code, which punish giving false evidence, and Section 209, which deals with dishonestly making a false claim in a court of justice.
The High Court held the threshold satisfied. There is, it found, a reasonable foundation in the contemporaneous record for the allegations against the concerned officers, and an inquiry into them is expedient in the interests of justice. It added that no further preliminary inquiry was necessary to form that opinion, because the successive drafts, the relevant file notings and the signed reply — cumulatively, the contemporaneous record — had already been examined.
That reference to successive drafts is what distinguishes this case from the ordinary perjury application. The Court was not comparing a single sentence against an external fact and inferring an intention; it had the agency's own internal trail showing how the sentence came to be written, and who participated in preparing and filing the document that carried it.
Why six officers, and not just the one who signed
The most consequential piece of reasoning concerns who can be proceeded against when a false statement reaches a court inside an institutional filing.
Section 191 applies where a person legally bound to state the truth makes a statement he knows or believes to be false, or does not believe to be true; Section 193 punishes intentionally giving false evidence in a judicial proceeding. The Court took from Perumal v. Janaki that the inquiry must address both the legal obligation to state the truth and the maker's knowledge or belief about the statement.
It then relied on Sanjeev Kumar Mittal v. State, a coordinate Bench decision holding that a knowingly false averment in a pleading required by law to be verified may attract Section 191 on filing, even where its maker never enters the witness box. Applying that, the Court held the inquiry cannot be confined to the officer who signed the reply, where the record prima facie shows that others knowingly participated in making, adopting or causing the statement to be placed before the court.
On this record the successive drafts and file notings, taken cumulatively, prima facie indicate that each officer concerned participated — to the extent attributed to him — in the preparation, alteration, vetting, processing, approval or filing of the reply, with knowledge of the actual position. The differences in the nature and degree of their participation, the Court held, do not warrant excluding any of them at the stage of directing a complaint; their precise knowledge and culpability are for the competent court to determine.
Section 209 was approached separately. It concerns the making, fraudulently or dishonestly, of a claim in court which the maker knows to be false. Drawing on H.S. Bedi v. National Highway Authority of India, the Court recorded that a claim includes the factual basis on which a party seeks an outcome, may arise in a reply or a defence, and is not confined to the party who instituted the proceedings. Here the assertion about ongoing correspondence was the factual ground used to oppose the application and to keep the documents, and the Court held the material furnishes a reasonable basis for the inference that the officers advanced a claim known to be inconsistent with the existing position — circumstances disclosing substantially more than a party's mere failure to establish a contention.
One argument on the chronology was addressed and rejected. The CBI did eventually file a special leave petition, and an order of January 2019 set aside certain directions for the return of documents. Those developments, the Court held, bear only on the availability and outcome of further legal proceedings; they do not retrospectively establish that correspondence with the Ministry was under way on 2 August 2016. The truth of a statement must be assessed against the position as it stood when it was made.
Why the Special Judge's reasons did not hold
The judgment identifies four grounds on which the application had been refused below, and rejects each.
The first was that the disputed statement reflected an imprecise choice of words. The High Court held the Special Judge erred in treating it that way — a characterisation that answers the question of intention by assuming it, when the drafts and notings were available to test it.
The second was determinative reliance on an additional reply filed on 9 August 2016, a week after the one complained of. A later clarification may be relevant, but it does not displace the inference arising from what was filed earlier and from the record of how it was prepared.
The third was the absence of actual prejudice to the appellant. That is a familiar answer to a perjury application and the Court declined to accept it here, which follows from what Section 193 protects: the offence is against the administration of justice, and a court misled is the injury, whether or not the litigant can show a separate loss.
The fourth was the passage of time. Nearly a decade separates the reply from the Special Judge's order. The High Court held that this, too, does not displace the prima facie inference arising from the contemporaneous record and the officers' participation in preparing and filing the reply.
Order
The Special Judge's order of 25 October 2025 was set aside, and the appellant's application under Section 340 was allowed by the High Court in its appellate jurisdiction.
The Special Judge was directed to make a complaint in writing against six officers — named in the judgment as Sushil Dewan, Vineet Vinayak, Amit Kumar, Raman Tyagi, Prem Kumar Gautam and Md. Azad — for the alleged commission of offences punishable under Section 191 read with Section 193 and under Section 209 of the Penal Code, and to transmit it to the jurisdictional Magistrate within four weeks of receiving the judgment.
There was an earlier proceeding on the same subject. Court Complaint No. 5 of 2018, titled “Court Complaint v. Sushil Dewan”, had been adjourned sine die with liberty to revive it if a fresh order under Section 340 were passed. The Court directed that the complaint now ordered be placed before the Chief Judicial Magistrate (Central) at Tis Hazari in those proceedings, with the Magistrate to pass appropriate orders on revival and proceed in accordance with law, while ensuring that parallel proceedings on the same allegations are not instituted. A copy of the judgment is to be sent to the Special Judge, who must forward it to the Magistrate along with the complaint, and the judgment was directed to be uploaded forthwith.
It bears emphasis that nothing has been decided against the six officers. A complaint under Section 340 begins a process; the Magistrate will take cognizance, and whether any offence was committed is for the trial that may follow. The High Court's finding is that the material crosses the threshold at which that question must be asked, not that it has been answered.
What makes the judgment significant is the kind of material it treats as sufficient. Applications under Section 340 against officers of investigating agencies very rarely succeed, because the applicant usually has only the filed document and must invite the court to infer a dishonest state of mind from it — an invitation courts decline, often with the same reasons the Special Judge gave here. This appellant had more: the drafts that preceded the filed reply and the notings that accompanied them, which show what the agency knew and when. Where that internal record exists and is before the court, this judgment holds that imprecision, a later clarification, want of prejudice and delay do not answer it.
The timeline is the other thing worth recording. The prosecution began on a 2002 sanction, the sanction was held invalid in 2016, the discharge followed in March 2016, the Ministry advised against appealing in June 2016, and the reply complained of was filed that August. The application under Section 340 was decided in October 2025 and reversed in October 2026 — a decade on from the statement, and twenty-seven years after the case against the officer was registered.