The judgment in Prabhakar Yeshwant Masram v. Sou Tula Namdeorao Jaipurkar, 2026 SCC OnLine SC 1367, to the extent it observes that proceedings for perjury should normally be postponed until the conclusion of the substantive proceedings, is plainly per incuriam.
Para 17 reads thus;
“17. Before parting, it may be noted that the Constitution Bench in Iqbal Singh Marwah (supra) was of the view that a direction for filing of a complaint normally ought not to be made during the pendency of the substantive proceedings before the Court but only when the proceedings conclude and the final judgment is rendered. The object is clear inasmuch as the main proceedings ought to be proceeded with and decided instead of diverting them with the aid of Section 340 of the Cr. P.C. It is noticed that at times, the aid of Section 340 of the Cr. P.C. is sought to be taken merely to delay the adjudication of the substantive proceedings, as also in the present case. The dictum of the Constitution Bench, thus, ought to be borne in mind by the Courts.”
The judgment appears to have misinterpreted the Constitution Bench decision in Iqbal Singh Marwah v. Meenakshi Marwah 2005 (4) SCC 370, by treating an incidental observation (obiter dicta) as the governing principle while overlooking the binding ratio decidendi expressly adopted therein from the Constitution Bench judgment in M.S. Sheriff v. State of Madras, AIR 1954 SC 397. Consequently, the Bench observed that proceedings for perjury should normally be initiated only after the conclusion of the substantive proceedings, whereas the binding Constitution Bench law lays down no such general proposition.
The ratio descidendi is in Para 32 of the Judgment. In Iqbal Singh marwah vs. Meenakshi marwah 2005 (4) SCC 370, it is ruled as under;
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cri LJ 1019] give a complete answer to the problem posed: (AIR p. 399, paras 15-16)
“15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
- Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”
Said judgment and para is followed in Surendra Vishwanath Mishra v. State of Maharashtra, 2019 SCC OnLine Bom 291, where it is ruled as under;
“3. This petition is filed for a limited relief that the application filed by the petitioner under sections 340 r/w 195 of the Code of Criminal Procedure in C.C. No. 2436 PW of 2017, be decided expeditiously.
- Considered para 32 of the judgement of the Constitution Bench of the Supreme Court in the case of Iqbal Singh Marwah v. Meenakshi Marwah 2005 (4) SCC 370
- In view of the limited relief prayed for, the petition is disposed of by directing the learned Metropolitan Magistrate, 67thCourt, Borivali, to decide the application filed by the petitioner under section 340 r/w section 195 of the Code of Criminal Procedure in CC No. 2436 PW of 2017 within two months from the date of receipt of the copy of this order.
- Rule made absolute accordingly.”
That in Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 it is ruled as under;
“19.[…] It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.”
That in Shiv Lal v. Ram Babu Dwivedi, 2006 SCC OnLine All 2495 it is ruled as under;
“18. Thus in view of law laid down by the Hon’ble Apex Court we have no hesitation to hold that law laid down by earlier larger Bench of Hon’ble Apex Court will prevail over the later smaller Bench decision of Hon’ble Apex Court, even if later smaller Bench of Hon’ble Apex Court considered the earlier larger Bench decision the same cannot be construed at variance with the larger Bench decision.”
Significantly, a three-Judge Bench of the Hon’ble Supreme Court, in Confederation of Real Estate Developers’ Associations of India v. Vanashakti, 2025 SCC OnLine SC 2474, recently set aside a judgment rendered by a two-Judge Bench on the ground that it was contrary to an earlier binding judgment of a coordinate Bench. The Supreme Court reaffirmed the well-settled principle that a judgment rendered in disregard of an earlier binding precedent of a coordinate or larger Bench is per incuriam and consequently loses its efficacy as a binding precedent.
The law is equally well settled that no Bench can ignore or take a view contrary to a binding decision of a larger Bench or a Bench of co-equal strength. In the event of disagreement, judicial discipline mandates that the matter be referred to a larger Bench. A subsequent Bench, even if it notices or discusses the earlier judgments, cannot lawfully take a contrary view on the same question of law. Any such judgment is per incuriam and does not constitute a binding precedent. Only a Bench of larger strength is competent to depart from or overrule the earlier binding law.
Furthermore, the proposition is inherently self-contradictory. The Supreme Court has repeatedly held that a litigant whose case is founded upon falsehood, suppression of material facts or fabricated evidence has no right to be heard on merits and may be non-suited at any stage of the proceedings. It would therefore be wholly illogical and legally inconsistent to hold, on the one hand, that such a litigant is disentitled to any relief on merits and, on the other hand, that the Court should ordinarily postpone the inquiry into that very falsehood until after hearing and finally deciding the case on merits. Such an approach would permit a litigant to prosecute and possibly succeed in proceedings founded upon fraud before the Court even determines whether the foundation of the litigation itself is false. This is precisely what the Constitution Bench in M.S. Sheriff sought to avoid by holding that criminal proceedings should ordinarily receive precedence in the larger public interest.
With respect, this is not the binding ratio of Iqbal Singh Marwah. More importantly, it is directly opposed to the Constitution Bench ratio in M.S. Sheriff, which Iqbal Singh Marwah expressly quoted with approval.
The error is fundamental. The Bench has treated an incidental or contextual observation as though it were the governing ratio, while overlooking the binding principle actually adopted by the Constitution Bench.
The Constitution Bench in Para 32 warned that criminal action should not be delayed until memories have faded and evidence has become unreliable:
“Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.”
The Court ultimately directed that the civil suits remain stayed until the criminal proceedings were concluded.
Thus, the Constitution Bench did not hold that criminal proceedings should await the civil case. It held precisely the opposite: criminal proceedings ordinarily deserve precedence, although special facts in a particular case may justify a different course.
That is the binding ratio. No Bench of lesser or co-equal strength could dilute, reverse or neutralise it.
Therefore, the legally binding proposition emerging from the Constitution Bench authorities is unmistakable:
- there is no statutory or legal rule requiring criminal prosecution to await the final decision in a civil proceeding;
- findings in civil and criminal proceedings are not ordinarily binding upon each other;
- criminal proceedings should generally receive precedence because public interest demands swift criminal justice; and
- the Court retains discretion to adopt a different course only where special circumstances make it expedient and just.
Paragraph 17 of Prabhakar Yeshwant Masram reverses this position by converting an exceptional possibility of deferment into a supposed normal rule of postponement.
The distinction is decisive.
Courts undoubtedly possess the power to reject a frivolous Section 340 application filed merely to delay the substantive case. But that procedural power cannot be transformed into immunity for a litigant whose case is founded upon a deliberately false affidavit, forged document or fabricated record.
The existence of some abusive applications cannot justify postponing every genuine complaint of perjury.
Fraud Must Be Examined Before a Case Founded Upon Fraud Is Decided
The administration of justice cannot proceed on the assumption that a Court must first decide a case on the basis of disputed or allegedly fabricated material and examine the fabrication only after judgment.
Where the falsehood goes to the root of the proceeding, the issue of perjury is not collateral. It determines whether the substantive case deserves to be heard at all.
A litigant cannot be permitted to say:
- first decide my case on the basis of the document I have produced;
- postpone examination of whether the document is forged;
- permit me to obtain interim and final advantages during the pendency of the proceeding; and
- consider prosecution only after I have exhausted the judicial process.
Such an approach rewards deception, prolongs fraudulent litigation and exposes the Court itself to the risk of passing orders on fabricated material.
The principle that fraud vitiates all judicial acts becomes meaningless if the inquiry into fraud is compulsorily postponed until after the proceeding founded upon that fraud has concluded.
Haresh V. Milani States the Correct Law
The Bombay High Court in Union of India v. Haresh V. Milani, 2018 SCC OnLine Bom 2080, correctly recognised that an application under Section 340 CrPC may have to be decided before the substantive proceeding.
The Court noticed the decision of the Allahabad High Court in Syed Nazim Husain v. Additional Principal Judge, Family Court 2003 SCC OnLine All 2358, directing the trial court to decide the Section 340 application before proceeding further.
It is ruled as under
“4. In my view, if an application is moved in the pending case bringing to the notice of the court that any false evidence knowing well has been filed or fabricated in such proceedings, the court should dispose of the said application first before proceeding any further or before recording of further evidence.
5. In the circumstances, I dispose of the present application and direct the Additional Principal Judge Family Court to dispose of the application so moved by the petitioner under Section 340, 344 Cr.P.C. before proceeding further in accordance with law.
6. With the above observations the petition is disposed of finally.”
Gulab Chaturkar Correctly Applies the Binding Ratio
The Bombay High Court in Gulab Chaturkar v. Vimalabai, 2022 SCC OnLine Bom 11964, also states the correct proposition of law.
It is ruled as under;
“2. The petition challenges the order dated 12-08-2022 passed by the trial court below exh 1 proceeding the matter without arguments of the plaintiffs. It is contended that since an application under S. 340 of the CrPC has been filed in MJC No. 660/22 the same needs to be decided first before the final decision of the suit. Reliance is placed upon the decision of Harish Malani V Haresh Malani in Civil Application No. 2939/2017 in WP No. 14038/17 decided on 26-04-2018 wherein it has been held that in case an application under Section 340 of Cr. P.C. is filed it has to be heard and decided first before deciding the WP. Similar is the proposition is laid down in WP No. (M/s) of 2002 decided 09-01-2003 Syed Nasim Hussain v. Additional Principal Judge Family Court.
- The basic nature of allegation under section 340 of the Cr. P.C., is that it prescribes the procedure for cases mentioned in Section 195 Cr. P.C. Section 195 CrPC contemplates prosecution for contempt of lawful authority of public servant, for offences against public justice and for offence relating to documents given in evidence. In such cases, if the Court comes to a conclusion that a document given in evidence has been tampered with as is the allegation in MJC No. 660/22 then any decision on such a plea would have a material bearing upon the decision of the suit on merits as the said decision, shall have to be considered by the court while evaluating the evidence led in the suit. This indicates that decision of application under Section 195 r/w 340 shall have to be prior in point of time before the suit is decided on its merits. Mr. Parmar, learned counsel for the petitioner submits that MJC No. 660/22, is lying in the same court where RCS No. 1468/2001 is pending. Considering which it would be necessary, for the learned trial court to decide MJC No. 660/22 prior to deciding the RCS N0.1468/01.”
The allegation in that case concerned tampering with a document produced in evidence. The Court correctly held that the decision on the Section 340 application would have a material bearing on the merits of the suit because the allegedly tampered document formed part of the evidence to be evaluated.
The Court therefore held that the application under Sections 195 and 340 CrPC had to be decided prior to the civil suit.
This is the only logical and legally sustainable course. A Court cannot properly evaluate the evidentiary value of a disputed document while refusing to decide whether that document was tampered with.
The ruling in Gulab Chaturkar is consistent with:
- the ratio in S. Sheriff;
- paragraph 32 of Iqbal Singh Marwah;
- the principle that fraud vitiates judicial proceedings; and
- the duty of courts to protect the purity of their own processes.
It is paragraph 17 of Prabhakar Yeshwant Masram, and not Gulab Chaturkar, that departs from binding law.
Praveen R. v. Arpitha Also States the Correct Position
The Karnataka High Court in Praveen R. v. Arpitha, 2021 SCC OnLine Kar 15703, correctly rejected the contention that proceedings concerning perjury should be deferred because another investigation was pending.
The Court described perjury as a heinous offence in all civilised societies and held that consideration of complaints concerning perjury cannot be deferred or delayed, failing which the “fountain of justice” may be polluted.
It is ruled as under;
“7. (…) The inner voice of this decision appears to have fallen on the deaf ears of the learned Judge of the court below c) The vehement contention of Mr. Jhadhav, learned Sr. Adv. that a Police investigation is launched against the petitioner-husband for producing copies of IT Returns and other documents of the respondent and therefore, till after its completion, no action for the commission of alleged perjury can be initiated, is bit difficult to countenance, more particularly, when the authenticity of these documents is not disputed even before this Court; in fact the Court below too has recorded a specific finding to this effect; the said Police investigation has nothing to do with perjury allegedly committed by the respondent; act of perjury is treated as a heinous offence in all civilized societies; consideration of complaints with regard to the same cannot be deferred or delayed; otherwise there is all possibility of the fountain of justice being polluted.”
This reasoning is entirely consistent with M.S. Sheriff. Delay benefits the wrongdoer. Evidence becomes stale, memories fade and the false material continues to influence the judicial proceeding.
The Court is not merely deciding a private dispute when it deals with perjury. It is protecting the administration of justice itself.
The ratio in Praveen R. is therefore the correct proposition of law and deserves to be followed.
Sarvepalli Radhakrishnan University Conclusively Disproves the Theory of Mandatory Deferment
The three-Judge Bench judgment in Sarvepalli Radhakrishnan University v. Union of India, (2019) 14 SCC 761, conclusively demonstrates that an inquiry into fraud and false evidence may and must precede final adjudication where the alleged falsehood goes to the root of the case.
It is ruled as under;
“6.1. By referring to the Assessment Report pursuant to the inspection done on 25-9-2017 and 26-9-2017, learned Senior Counsel for Respondents 1 and 2 submitted that the College was indulging in fraud by showing persons who were not sick as patients only for the purpose of showing compliance of the minimum requirements. The learned Senior Counsel appearing for the College refuted the said contention and argued that all the patients were genuine. As this Court was in no position to determine the truth or otherwise of the allegations, an enquiry was directed to be conducted into the correctness of the statistics, reports and material placed before this Court by the College along with the writ petition.
6.2. For the said purpose, a committee was constituted [Sarvepalli Radhakrishnan University v. Union of India, (2019) 14 SCC 779] by this Court. A senior officer deputed by the Director, Central Bureau of Investigation (CBI), was directed to head the Committee which would have two doctors of the All India Institute of Medical Sciences (Aiims) as its members. It is relevant to note that in the said order dated 14-12-2017 [Sarvepalli Radhakrishnan University v. Union of India, (2019) 14 SCC 779] it was made clear that the College may have to face prosecution under Section 193 of the Penal Code, 1860 (IPC) if the allegations made by Respondent 2 were found to be correct. The decision to constitute a committee by this Court was arrived at after a thorough examination of the voluminous material placed on record by the College. The material was constituted of several photographs showing patients occupying the beds and their case sheets. A bare perusal of the photographs did not convince us that the patients were genuine. After a close scrutiny of the case sheets, we had serious doubts about the necessity for admission of persons suffering from minor ailments as in-patients.
- Without delving deep into the details of the report submitted by the Committee, it is clear that the College is guilty of practising fraud on this Court. The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance with the requisite minimum standards for admission of students does not deserve to be condoned. The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by MCI in spite of their compliance with the required standards is deprecated. The brazen attempt by the College in taking this Court for a ride by placing on record manoeuvred documents to obtain a favourable order is a clear-cut act of deceit. The justification given by the College regarding the absence of certain residents has turned out to be a concocted story. Had we not initiated an enquiry by the Committee of Experts, the fraud played by the College on this Court would not have come to light. It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably.
- In R. Karuppan, Advocate, In re [R. Karuppan, Advocate, In re, (2001) 5 SCC 289 : 2001 SCC (Cri) 876] , this Court observed as under: (SCC p. 293, para 13)
“13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice-dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings is to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.”
- The brazen manner in which the College has indulged in relying upon manipulated records to mislead this Court for the purpose of getting favourable order deserves to be dealt with in a serious manner. We find that this is a fit case where Mr S.S. Kushwaha, Dean of the College must be held liable for prosecution under Section 193 IPC.
- For the aforementioned reasons, we pass the following order:
20.1. Mr S.S. Kushwaha, Dean of RKDF Medical College Hospital and Research Centre i.e. Petitioner 2 herein is liable for prosecution under Section 193 IPC. The Secretary General of this Court is directed to depute an officer to initiate the prosecution in a competent court having jurisdiction at Delhi.
20.2. The College is barred from making admissions for the first year MBBS course for the next two years i.e. 2018-19 and 2019-2020.
20.3. A penalty of Rs five crores is imposed on the College for playing fraud on this Court. The amount may be paid to the account of the Supreme Court Legal Services Committee.
20.4. The students are entitled to receive the refund of fee paid by them for admission to the College for the academic year 2017-2019. In addition, the College is directed to pay a compensation of Rs one lakh to the said students.”
Conclusion
The judgment in Prabhakar Yeshwant Masram is correct only insofar as it protects litigants from prosecution for innocent, inadvertent or typographical mistakes.
Its observation that proceedings under Section 340 CrPC should normally await the conclusion of the substantive proceedings is legally unsustainable. It misreads Iqbal Singh Marwah, overlooks the binding Constitution Bench ratio in M.S. Sheriff, and conflicts with subsequent decisions requiring prompt action where falsehood affects the foundation of the case.
The governing law is not that perjury must wait for the main proceeding. The binding rule is that criminal proceedings ordinarily deserve precedence, subject only to special circumstances justifying a different course.
The decisions in Haresh V. Milani, Gulab Chaturkar and Praveen R. correctly state and apply this proposition. They recognise that a Court cannot decide a case on allegedly fabricated evidence while postponing examination of the fabrication until after final judgment.
Paragraph 17 of Prabhakar Yeshwant Masram therefore does not constitute a binding precedent. Being contrary to the law declared by the Constitution Bench in M.S. Sheriff, as expressly adopted in Iqbal Singh Marwah, it is per incuriam and loses its efficacy as a precedent.
Judicial discipline requires that the binding Constitution Bench ratio alone be followed. Any departure from that ratio could be made only by a larger Bench not by a two-Judge Bench through an incidental concluding observation.
The purity of judicial proceedings cannot be preserved by postponing action against deliberate falsehood. Innocent mistakes must be protected, but fraud, fabrication and perjury must be examined at the earliest stage at which they affect the administration of justice.
