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Perjury; Historical & Legal Background And Its Development In India

The word 'Perjury' is derived from the Latin word perjurium. 'Perjurium' was referred to as a sin but not as a public wrong. It was dealt with invoking God to bear witness to the truth of the statement where the speaker knew that the statement was false. Irrespective of the Judicial proceedings, it could be committed anywhere. Roman law provided for an offense which was similar to the modern concept of perjury.

A witness who had taken an oath in a Judicial proceeding and then testified falsely or withheld the truth was upon conviction deported if he were a person of rank, or put to death if one of the common people. Perjury is an obstacle to the Judiciary and its conduct may damage the parties' most significant concerns before the Court. The prosecutions for perjury are rare. Perjury by a jury was the only form of perjury which was punished by the common law until the 15th Century.

In upholding the legitimacy of the Judicial system in India, Perjury has a specific role to play. British concepts of perjury prevalence in India were ironically used as both a colonial excuse for destabilising and sustaining trust in the rule of law. British perjury concepts served to distract criticism from the colonial state's practical workings.

Native perjury explains why it appears that the rule of law does nothing to impede progress. Perjury was a satisfactory administrative problem and, like other problems, received little scientific attention at this level. When the British Government relied on native informants, suspicion of deception was nearly certain.

In British India, the early records show a Petition in the 1858 from Ishri Prasad to Lord Canning after the Sepoy Mutiny of 1857-58. Of those higher caste convicted of perjury were to be attached with a sweeper of lower caste. They would be employed to spit into the mouths of the convicts who had been accused, thereby, causing defilement. Such convicts would then be converted to Christianity and employment in the Allahabad regiment. [Wendie Ellen Schneider, Engines of Truth, Yale University Press. (2015)].

Although Pershad's Scheme largely trampled upon Hindu philosophy to imbibe a sense of ignominy and was largely an illustration of popular belief, the Petition shows the prevalence of Perjury. In an effort to bring forward uniformity in law throughout the country, James Mill and Thomas Babington Macaulay wanted to codify Indian Laws.

According to the Charter Act of 1833, India's First Law Commission in 1834 drafted the Indian Penal Code and the Criminal Procedure Code for India. They were based to be symmetric and utilitarian.

Perjury Laws In India

  1. Section 191of the Indian Penal Code, 1860

    Explains that giving false evidence which means that a person who is bounded by oath or express provision of law, to tell the truth but makes a false statement or a statement which he believes to be false or doesn't believe to be true. False evidence or statement from a person may or may not be in written form. Under the English Perjury Act 1911, perjury also refers to Section 191. Perjury is all about providing false evidence.

    For The Implementation Of Section 191, The Three Basic Conditions Are:
    • A legal obligation to state the truth,
    • Making of a false statement or declaration,
    •  Belief in its falsity.

    Essential Ingredients of False Evidence False evidence made by a person who is:

    • Bound by oath, or
    • By an express provision of law, or
    • A declaration which a person is bound by law to make on any subject, and
    • By which the statement or declaration is false and which he either knows or believes to be false or does not believe it to be true.
    Perjury has been kept at the position of criminal form under English Law of Perjury because a person is at the guilt by the statutory obligation of crime if lawfully sworn as a witness or as an interpreter in a Judicial proceeding where he/she lawfully makes a statement material in that proceeding which is known to be false or does not believe it to be true.
  2. Section 8 of the Oath Act, 1969:

    Every person giving evidence on any subject before any court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.
    Infringement of oath is a pre-requisite. An express requirement to tell the truth under the Indian law needs the declaration against oath/declaration.

    Legally Bound by Oath:

    • A Person is legally bound by oath if:
      1. A Person should be bound by oath.
      2. By an express provision of law to state the truth.
      3. Or bound by law to make a declaration.
    • Legal obligation to speak the truth in view of the oath administered.
    • Express Provision of law which binds him/her to speak the truth.
    • Irregularity of oath administration:
      Some irregularities exist in oath administration by officials, e.g. oaths are not correctly signed or procedural irregularities are found.
  3. Section 192 of the Indian Penal Code, 1860

    Defines fabricating false evidence. Whoever causes circumstances to exist or makes false entries in a book or record, or makes electronic records or documents containing a false statement intended to make such circumstances and false entries or false statements in proceedings before a civil servant as such or before an arbitrator, or in proceedings taken in law, and which such a person may appear in evidence before an arbitrator.

  4. Section 195 of the Indian Penal Code, 1860

    Deals with giving or fabricating false evidence with an intention/knowledge for an offence punishable with imprisonment for seven years or more or life imprisonment. He will be penalised as if someone convicted of the offense is punishable.

    The false statement is a statement or declaration, under English Law, made in a judicial procedure falsely, but under Indian law false evidence is a declaration when a public servant is also classifiable as Perjury.
  5. Section 195A of Indian Penal Code, 1860

    Is added by Amendment Act, 2006. The conduct must threaten another person with an injury to his person, to his reputation, to his property or to his or her personality or reputation of family, friends. The accused should have the goal of providing false evidence. Punishment will either be imprisonment of either description for a term which can also extend to seven years or with fine or both.

Crime Of Perjury

Perjury is a crime that blurs the lines between substantive and procedural law, posing a challenge to the Judicial Administration System. The term "Perjury" is nowhere defined either in the Indian Penal Code, 1860, or for that matter in the Criminal Procedure Code.

However, the Supreme Court in ["Kishorbhai Gandubhai Pethani v/s State of Gujarat & Anr",(2014) 13 SCC 539 at Page 542] has succinctly elaborated the meaning of perjury in Para 9, which reads as under:
9. Perjury is an obstruction of Justice. Deliberately making false statements which are material to the case, and that too under oath, amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the Judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the Court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the Court as well as for the benefit of the public at large.

The genesis of the offence of perjury finds mention in Sections 191 and 192 of the Indian Panel Code, 1860 that defines "giving of false evidence" and "fabricating false evidence" respectively. It should be noted that the punishment for these offences finds mention in the charging Section i.e. 193 of the Indian Panel Code, 1860.

Further, the aggravated form of these offences stands committed if giving or fabricating false evidence was done with in intent to procure conviction of a capital offence (Section 194); if with an intent to procure conviction or are committed if the intent to procure conviction for an offence punishable with imprisonment for life.

Application Of Rule Of Audi Alteram Patrem At Pre-cognizance Stage

It is a settled law that the accused does not have a right of being heard at stage prior to registration of First Information Report or a stage prior to taking of the cognizance. Whether the proposed accused can be heard at a stage prior to registration of First Information Report came for consideration before the Supreme Court in [Anju Chaudhary Vs State of U.P & Anr, (2013) 6 SCC 384 at Pages 409-410], wherein it was observed as under:
31. … Where the officer in charge of a police station is informed of a heinous or cognizable offence, it will completely destroy the purpose of proper and fair investigation if the suspect is required to be granted a hearing at that stage and is not subjected to custody in accordance with law.

There would be predominant possibility of a suspect escaping the process of law. The entire scheme of the Code unambiguously supports the theory of exclusion of audi alteram partem pre-registration of an FIR. Upon registration of an FIR, a person is entitled to take recourse to the various provisions of bail and anticipatory bail to claim his liberty in accordance with law.

It cannot be said to be a violation of the principles of natural justice for two different reasons:

  1. Firstly, the Code does not provide for any such right at that stage,
  2. Secondly, the absence of such a provision clearly demonstrates the legislative intent to the contrary and thus necessarily implies exclusion of hearing at that stage.

  This Court in {Union of India Vs W.N. Chadha, (1993 Supp (4) SCC 260} clearly spelled out this principle in Para 98 of the Judgment that reads as under: (SCC P. 293)

98. If prior notice and an opportunity of hearing are to be given to an accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary.

Procedure To Initiate Perjury Proceedings

Section 195 of Code of Criminal Procedure, 1973 provides a bar that states that no Court will take cognizance of the offences under Sections 193-196 (perjury and its aggravated form) except on the complaint in writing by such Court or by an officer authorised by such Court. A bare reading of the Section would reveal that for the offences of perjury, it would be the Court that will be a complainant as these offences are against the public Justice.

Section 340 of Code of Criminal Procedure, 1973 further enumerates the procedure to be followed in respect of the offences mentioned under Section 195 of Code of Criminal Procedure, 1973 provides for a bar of taking cognizance of the offences inter alia mentioned under Sections 193-196 of the Indian Panel Code, 1860. If the Court is of the opinion that it is expedient in the interest of Justice that an inquiry may be conducted in respect of the offences as mentioned under Section 195 may order an inquiry and upon conclusion of such inquiry record a finding to this effect and make a complaint in writing.

The Supreme Court in [Surjit Singh & Ors. Vs Balbir Singh, (1996) 3 SCC 533] while explaining the scope of the inquiry under Section 340 of Code of Criminal Procedure, 1973 observed as under:
Public Justice demands an absolute bar of private prosecution and that power be given to the Court to lay complaints under Section 340 of the Code as per the procedure prescribed therein. The object thereby is to protect persons from needless harassment by the prosecution for private vendetta; to preserve the purity of the Judicial process and unsullied administration of Justice; to prevent the parties from the temptation to pre-empt proceedings pending in a Court and to pressure and desist parties from proceeding with the case. The bar of Section 195 is to take cognizance of the offences covered thereunder.

The object thereby is to preserve the purity of the administration of Justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the Judicial process. In this case, the original agreement appears to have been filed in the Civil Court on 9.2.1984 long after cognizance was taken by the Magistrate.

Whether The Proposed Accused Claim The Right Of Being Heard At The Stage Of Inquiry Under Section 340 Of Code of Criminal Procedure, 1973.

As per 340 of Code of Criminal Procedure, 1973, captioned as "Procedure in cases mentioned in Section 195", when upon an application made to it in this behalf or otherwise, any Court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or as the case may be in respect of a document produced or given in evidence in a proceeding in that Court, such Court may after such preliminary enquiry, if any, as it thinks necessary:

  1. Record A Finding To That Effect;
  2. Make A Complaint Thereof In Writing;
  3. Send It To A Magistrate Of The First Class Having Jurisdiction;
  4. Take Sufficient Security For The Appearance For The Accused Before Such Magistrate, Or If The Alleged Offence Is Non-Bailable And The Court Thinks It Necessary So To Do, Send The Accused In Custody To Such Magistrate; And
  5. Bind Over Any Person To Appear And Give Evidence Before Such Magistrate.

The two essential pre-requisites, as predicated by this provision, are formation of an opinion (1) even if prima facie, that an offence referred to Section 195 (1)(b) appears to have been committed in or in relation to a proceeding of the Court or as the case may be in respect of any document produced or given in evidence in a proceeding in that Court and (2) it is expedient in the interests of justice that an enquiry should be made into such offence.

It is no longer res integra that the preliminary enquiry, as comprehended in Section 340, is not obligatory to be undertaken by the Court before taking the initiatives as contained in clauses (a) to (e) while invoking its powers thereunder. Section 341 provides for an appeal against an order either refusing to make a complaint or making a complaint under Section 340, whereupon the superior court may direct the making of the complaint or withdrawal thereof, as the case may be. Section 343 delineates the procedure to be adopted by the Magistrate taking cognizance.

This provision being of determinative significance is quoted herein below:

343: Procedure of Magistrate taking cognizance:

  1. A Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.
  2. Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.

Whether a person against whom Court may initiate the proceedings in terms of Sections 195 (1)(B)/340 of Code of Criminal Procedure, 1973 be afforded an opportunity of hearing before any complaint is made to the Magistrate in terms of the said provision(s)?.

The said question fell for consideration before the Supreme Court in [Pritish Vs State of Maharashtra & Ors,(2002) 1 SCC 253], wherein, it was observed as under:
9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the Court. It is important to notice that even when the Court forms such an opinion it is not mandatory that the Court should make a complaint.

The purpose of preliminary inquiry, even if the Court opts to conduct it, is only to decide whether it is expedient in the interest of Justice to inquire into the offence. The Supreme Court has ruled that there is no requirement for a Court to provide an opportunity of hearing to the persons against whom it might file a complaint before the Magistrate for initiating prosecution proceedings. The Court at that stage is not deciding the guilt or innocence of the party against whom proceedings are to be taken, but whether it is expedient in the interest of Justice to hold an inquiry.

10. Inquiry is defined in Section 2(g) of the Code as:
Every inquiry, other than a trial, conducted under this Code by a magistrate or Court

It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion. whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said Court has to make a complaint in writing to the Magistrate of first class concerned.

As the offences involved are all falling within the purview of "warrant case" (as defined in Section 2 (x)) of the Code the Magistrate concerned, has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report, that being the position, the Magistrate on receiving the complaint shall proceed under Section 238 to 243 of the Code.

Thus, the Supreme Court after examining the legal provisions came to a conclusion that a prospective accused does not have any right of being heard at the stage of inquiry. The said ratio is also in sync with other earlier Judgments that held that the accused does not have any right of being heard at a pre-cognizance stage.

The Supreme Court in [Sharad Pawar Vs Jagmohan Dalmiya, (2010) 15 SCC 290] however departed from the settled legal position as held in in [Pritish Vs State of Maharashtra & Ors] (supra) and observed that the proposed accused must be given an opportunity of being heard in the inquiry under Section 340 of the Code of Criminal Procedure, 1973.

The said issue once again came for consideration in [State of Punjab Vs Jasbir Singh, (2020) 12 SCC 96], wherein, the Court noted the conflicting decision in Sharad Pawar (supra)and Pritish (supra)case and referred the matter to a larger Bench for deciding the said issue.

In the backdrop of the settled legal position as held in Anju Choudhary (supra) says that the accused has no right of being heard at a pre-cognizance stage that has stood the test of time. It can safely be concluded that departure from the ratio of Pritish (supra) in Sharad Pawar (supra) was not legally tenable and in the humble opinion of the author, the larger Bench is likely to affirm the ratio of Pritish (supra) says that the proposed accused does not have any right of being heard at the stage of inquiry under Section 340 of the Code of Criminal Procedure,1973.

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 Justice Delivery System. Which was in vogue in 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. In last few 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.

' …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/she does not wish to punish him or even file a complaint against him/her. He himself has to sign the complaint. This deters him/her from filing the complaint…'

'making of 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. There is nothing in law to prevent a person from being proceeded for contempt where a verification is specific and deliberately false.'

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected]; [email protected]  

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