"There is no excuse for perjury-never, never, never. There is truth, and the truth demands respect."- Kenneth Starr
What is Perjury?
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. (Black's Law Dictionary 2nd Ed. And The Law Dictionary)
In simple terms Perjury is defined as an offence of lying when you are under oath. 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.
PRE-REQUISITES FOR INITIATION OF PROCEEDINGS UNDER SECTION 340 OF THE CODE OF CRIMINAL PROCEDURE, 1973
There are two pre-conditions for initiating proceedings under Section 340 CrPC –
A) Materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC and
B) It is expedient in the interests of justice that an inquiry should be made into the alleged offence.
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 Indian Penal Code (45 of 1860) (hereinafter referred to as "the 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 in Section 340(1) of the 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.
In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 of the CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra and Others (2002) 1 SCC 253).
In Iqbal Singh Marwah and Another v. Meenakshi Marwah and another (2005) 4 SCC 370, a Constitution Bench of this Court has gone into the scope of Section 340 of the CrPC.
Paragraph-23 deals with the relevant consideration:
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. ..."
VP Singh, Managing Partner
Posted on October 27, 2018
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