What is perjury?

As per the Cambridge Dictionary[1] Perjury is the crime of telling lies in court when you have promised to tell the truth. The Merriam Webster dictionary[2] defines perjury as voluntary violation of an oath or vow either by swearing to what is untrue or by omission to do what has been promised under oath. In criminal law. The willful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to misled the court, jury, or person holding the proceeding[3]. The Indian Penal Code, 1860 defines Perjury in Chapter IX “OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC JUSTICE” under Section 191. The punishment for the offence of Perjury is defined under section 193 of Indian Penal Code, 1860 as SEVEN YEARS of imprisonment. The procedure in dealing with cases mentioned u/s 191 of Indian Penal Code, 1860 are dealt in Chapter XXVI of The Code of Criminal Procedure, 1973 under section 340.

In India Offence of Perjury or giving false evidence before the Court of law deliberately is a distinct offence which comes into play every day before various Courts/Tribunals etc. However, the process of making such complaint and ingredients of such offence are not clear to most of us. Section 191 of IPC describes false evidence. Section 191 of IPC is as below:

  1. Giving false evidence.—Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or be­lieves to be false or does not believe to be true, is said to give false evidence.

Explanation 1.—A statement is within the meaning of this sec­tion, whether it is made verbally or otherwise.

Explanation 2.—A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

History of the offence[4]:

Before witnesses had any formal role in trials, there was no need for a perjury law. In the Middle Ages, when the English common law was developing, trial by battle was used to test a sworn accusation. Similarly, for the sworn denial of a serious charge based on mere suspicion, an ordeal administered by a priest was the predominant mode of trial until it was abolished in 1215 as superstitious. Finally, at least until the Assize of Clarendon (1166), less serious accusations could be successfully answered by “compurgation”, that is, by obtaining a sufficient number of “oath helpers” to support the defendant’s credibility.

Trials in the modern sense began to develop only in the thirteenth century. Little is reliably known about the conduct of jury trials prior to the sixteenth century, but in civil cases, it seems that genuine witnesses were permitted to give their accounts, although they could not be compelled to appear. In early criminal cases, the jury seems always to have included some who, aware of the commission of a crime in their community, brought the suspect before a Judge. Those witnesses who did attend these early trials were perceived as part of the jury and retired with them to deliberate, often to make their disclosures in secret. It was the verdict, not the testimony, that was perceived as either true or false; the only remedy for falsehood remotely akin to a perjury prosecution was a seldom-invoked procedure called “the writ of attaint”, created in 1202 and not abolished formally until 1825. Though attaint, the jury would be punished for a `false’ verdict and the verdict itself overturned.

Witness first testified under oath in criminal cases on behalf of the Crown in the sixteenth century. No witnesses for the defence were permitted until the mid-seventeenth century, since they would have been witnesses against the Crown, and not until 1702 were defence witnesses permitted to be sworn (1 Anne, St. 2, c.9, s.3 (1701) (England) (repealed)). By the late seventeenth century the jury had lost all its testimonial functions, and witnesses thus became the sole means of bringing facts to the Judge’s and jury’s attention.

Since the early common law had no established mechanism for dealing with false swearing by witnesses, the court of Start Chamber assumed for itself the power to punish perjury. This authority was confirmed by statute in 1487 (Star Chamber Act, 3 Hen. 5, c.1 (1487) (England) Repealed)). The first detailed statute against false swearing was enacted in 1562 (5 Eliz. 1, c.9 (1562) (England) (Repealed)). When the Star Chamber was abolished in 1640, its judicially defined offense of perjury passed into English common law, reaching any cases of false testimony not covered by the terms of the statute.

Edward Coke, whose views strongly influenced early American law, wrote in his Third Institute, published in 1641, that perjury was committed when, after a `lawful oath’ was administered in a `judicial proceeding’, a person swore `absolutely and falsely’ concerned a point `material’ to the issue in question (*164). In this form, the law remained unchanged into the twentieth century.”

Understanding the offence of perjury:

To understand the offence two sections of distinct code i.e. Section 340 CrPC and Section 195 of IPC are required to be studied. On one hand, Offence is prescribed under Section 195, on the other hand process to make such complaint is prescribed under Section 340 Cr.P.C. The object of Section 340 Cr.P.C. is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or evidence given in court during the time when the document or evidence was in custodia legis[5] and whether it is also expedient in the interest of justice to take such action as required under Section 340 Cr.P.C.

Section 340 of the Criminal Procedure Code reads as under:

“340. Procedure in cases mentioned in Section 195. –

(1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest 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 evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, –

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance of 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

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.

(3) A complaint made under this section shall be signed, –

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court [or by such officer of the Court as the Court may authorise in writing in this behalf.]

(4) In this section, “Court” has the same meaning as in Section 195.”

 

Further, Section 195 of the Code of Criminal Procedure reads as under:-

195: (1) No Court shall take cognizance –

(a)  xx    xx    xx

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),

[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]

Who has power to take cognizance under Section 340?

It has been held that all Courts, Tribunals, Commissions have power to take cognizance of the Section, however Commissions appointed under Commission of Inquiry Act have no right to take cognizance under the section. In case, they prima facie believe that offence is committed, the complaint shall be made in proper format as provided in the Code.

Where offence under Section 195 IPC shall be tried?

Offence under Section 195 IPC is triable by a Court of Judicial Magistrate First class and process of such trial is provided under Section 343 Cr.P.C.

Who has power to file complaint under Section 340 Cr.P.C?

Prior to 2006 amendment, only presiding officer had power to make complaint under the Section. However, that bar has been removed now and now any officer authorized by the Court has power to sign complaint under the Section.

Which Court can take cognizance?

Any Court before which evidence is produced or higher court. If higher court is of view that in any proceedings in any court subordinate to it, offence under the Section has been committed, it may also file complaint under the Section.

How Offence is committed and what are its ingredients?

From reading of the Section 340 Cr.P.C., two basic ingredients of Section 340 Cr.P.C. are made out. Firstly, an offence under Section 195(1)(b) appears to have been committed and Secondly, it is expedient in the interest of justice to hold an inquiry regarding same.

The court has to be satisfied as to the prima- facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) Cr.P.C. Hon’ble Supreme Court of India in Amarsang Nathaji as himself and as karta and manager v. Hardik Harshadbhai Patel and Others (2017) 1 SCC 113 held as under:-

“6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC” ); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. and Another v. Union of India (1992) 3 SCC 178). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.”

Thus apparent, anything and everything doesn’t make the offence and some positive act has to be made on behalf of the accused on which the Court shall act as a complainant and refer the matter to the concerned magistrate for inquiry.

There are few basic things which are required to be understood in order to understand the Sections and offences. The same are discussed below:

Firstly, the perjury should appear to be deliberate and conscious and the conviction is reasonably probable, the Section has no application otherwise

The prosecution for perjury should be sanctioned by Courts only in those cases where there is prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. Before exercising its discretion to lay a complaint under Section 340 of the Code, the Court should find first that it is in the interest of public justice that a complaint should be made and secondly that there is reasonable probability of a conviction resulting on the complaint. The prosecution for perjury should be sanctioned by Courts only in those cases where perjury is deliberate and conscious, and conviction is reasonably probable. Where the element of mens rea is absent in the offences imputed against the person concerned, it is not expedient in the interest of justice to initiate prosecution on petition under Section 340 of the Code.

It has been held by Hon’ble Supreme Court in Chajoo Ram versus Radhey Shyam and another, AIR 1971 SC 1367 that,

“The prosecution for perjury should be sanctioned Courts only those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint.”

In the decision reported in Santokh Singh v. Izhar Hussain, AIR 1973 Supreme Court 2190: (1973 Cri LJ 1176), the Apex Court expressed the following views:

“Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency.”

It is thus a discretion of the court to ascertain the facts of the case and accordingly make complaint for initiation of proceedings under S. 340. However, it is to be noted that the discretion is to be exercised carefully and it is required that there must be a direct evidence of perjury being conducted.

A Division Bench of Hon’ble Orissa High Court in Lakshmi Narain Deepak Ranjan Das versus K.K. Jha and others, 1999 Cri. L. J. 4200 while explaining the powers of the court to order inquiry under Section 340 held:

“The power given by the Section should be used with care and after one consideration. It is by no means in every instance in which a party fails to prove his case that the Judge who has decided against such party is justified in exercising the powers given to him by this Section. So long as it is a case to which there is any possible doubt, or in which it is not perfectly certain that the Judge’s decision must be upheld in the event of there being an appeal, the Judge acts indiscreetly and wrongly if the moment he has given his judgment in the case he exercises the power given to him by this Section. At the same time, if in the course of the trial the Judge has before him clear and unmistakable proof of a criminal offence, and if after the trial is over, he, on consideration thinks it necessary to proceed at once, of course, it may be right to do so. It should be borne in mind that criminal prosecutions are frequently suggested by successful litigants merely to prevent an appeal in the case; and they should be careful not to lend themselves to such suggestions too readily. They should also re-collect that when they proceed under this Section, the responsibility of the prosecution rests upon the Judge entirely: such a prosecution being a very different thing from a prosecution instituted on the complaint of a private party.

Secondly, before an order is made under Section 340 of the Code there must be grounds of a nature higher than mere surmise or suspicion for directing a judicial enquiry.

Before the proceedings under Section 340 to be instituted there must be direct evidence fixing the offence upon the persons whom it is sought to charge either in the preliminary enquiry or in the earlier proceedings out of which the enquiry arises. It is not sufficient that the evidence in the earlier case may induce some sort of suspicion that these persons had been guilty of an offence but there must be distinct evidence of the commission of an offence by such persons. A complaint under this section should not be made against a person where the indications of his guilt do not amount to anything more than mere suspicion.

A Court taking action under this Section must not only have ground for inquiry into an offence referred to in the Section, but must also be prima facie satisfied that the offence has been committed by some definite person or persons against whom proceedings ought to be taken. The use of the words ‘appears to have been committed’ in Section 340 of the Code is significant and merely shows that there should be prima facie material before Court to indicate that the offences complained of are likely to have been committed. The danger of parties vindictively proceeding against their opponents by initiating proceedings under Section 340 of the Code has to be kept in mind and must make the Court pause and consider the expediency of prosecution in a particular case with reference to its facts and not launch prosecution at the instance of parties in every case where perjury is discovered.

Thirdly, in cases where no materials are available before the Court which decided the original case to enable it to form an opinion that a particular witness had given false evidence and such materials are only later on brought to the notice of the Court, proceedings under Section 476 of the Code are maintainable.

The Court should be expressly clear about its initial prima facie finding that material to prove perjury is before it. Otherwise, the section will have no application. Where, the section has no application, remedy before a complainant lies in Section 476 IPC or Section 467 IPC as the case may be.

As pointed out by the Supreme Court in K. Karunakaran v. T.V. Bachara Warrier, AIR 1978 Supreme Court 290 : (1978 Cri LJ 339) in a proceeding under Section 340(1) of the Code the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in the earlier proceedings. The only question at an enquiry under Section 340(1) of the Code is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the Court at this stage, but if it does not, it will not be estopped from doing so later if the trial of prosecution is sanctioned by the Court. An enquiry under Section 340(1) of the Code is in the nature of affording a locus poenitentiae[6] to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full opportunity in due course of the process of justice to establish his innocence.”

Thus, it is clear that a power under Section 340 has to be exercised while in consonance with Section 195 of Cr. P.C. It is to be seen that a reading of Sections as mentioned in Section 195(2)(a) shows that the offences prescribed are positive. Thus, a deliberate intention has to be there to wilfully mislead the court regarding any fact.

Section has no application for anything done outside a Court of Law

View of full bench of Hon’ble Punjab and Haryana High Court in Harbans Lal versus State of Punjab cited as 1986(2) R.C.R. (Criminal) 481 is to be taken note that the power of the Court is limited to the offences mentioned in the section if committed in regard to the document produced or given in evidence while in custody of the court. If any forgery is committed outside the Court; the section has no application. Supreme Court while referring to its earlier decisions in Gopalakrishna Menon v. D. Raja Reddy[7] and Patel Laljibhai Somabhai v. State of Gujarat[8] held that offence of perjury would be attracted only if offence of forgery is committed when the document was in custodia legis[9] and mere production of document would not attract offence of perjury.

Whether, an opportunity of hearing is required to be given to the accused before ordering prosecution?

There are conflicting views relating to this and the matter has now been referred to larger bench. On the one hand Supreme Court in Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140 held that preliminary inquiry is not always necessary before ordering prosecution. However, subsequently without appreciating the decision in Pritish’s case, it was held in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290 that preliminary inquiry is necessary before ordering prosecution. Further, Supreme Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, it was held that preliminary inquiry is not necessary, and it is discretion of the Court.

However, now in its decision dated 26.02.2020 the question whether preliminary inquiry is necessary before making complaint or not has been referred to larger bench in State of Punjab v. Jasbir Singh, 2020 (4) SCALE 302.

Provisions relating to Appeals/Revisions:

The provision relating to filing appeal against the order under Section 340 of Cr.P.C. lies in Section 341 of Cr.P.C. which gives immediate higher court to accept the appeal. However, it is specifically provided that no appeal shall lie against any order passed under Section 341 of Cr.P.C.

Sector 341 of Cr.P.C. is as under:

341.Appeal.

(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub- section (1) or sub- section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.

 

Whether High Court has power to entertain revision?

Since, there is specific bar in subsequent proceedings, no revision lies against order passed under this Section. However, there is law that High Court can entertain petition under Section 482 of Cr.P.C.[10]

 

[1] https://dictionary.cambridge.org/dictionary/english/perjury

[2] https://www.merriam-webster.com/dictionary/perjury

[3] Black’s Law Dictionary 2nd Ed. And The Law Dictionary

[4] Stanford H. Kadish in “Encyclopedia of Crime and Justice” (Vol. 3)

[5] Latin phase meaning “in custody of law”

[6] Locus poenitentiae is a Latin phrase associated with contractual law which means opportunity to withdraw from a contract or obligation before it is completed or to decide not to commit an intended crime, Ref: Merriam Webster Dictionary.

[7] (1983) 4 SCC 240

[8] (1971) 2 SCC 376

[9] It is a latin phase meaning “In custody of law”

[10] Lalit Mohan Mondal v. Benoyendra Nath Chatterjee, (1982) 3 SCC 219