By Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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The principles relating to Perjury, False Claim & False Prosecution in a judicial proceeding and its consequences under Section 209 of the Indian Penal Code (IPC) & Section 340 of the Criminal Procedure Code (Cr.P.C.) have been meticulously theorized and summarized by the Hon'ble Delhi High Court in it landmark judgment in the case of H.S. Bedi Vs. National Highway Authority of India ( can be downloaded and read from http://lobis.nic.in/ddir/dhc/JRM/judgement/22-01-2016/JRM22012016RFA7842010.pdf), which have been summarized as under.
Section 209 of the Indian Penal Code makes dishonestly making a false claim in a Court as an offence punishable with imprisonment upto two years and fine.
The essential ingredients of an offence under Section 209 are:
- The accused made a claim;
- The claim was made in a Court of Justice;
- The claim was false, either wholly or in part;
- That the accused knew that the claim was false; and
- The claim was made fraudulently, dishonestly, or with intent to injure or to annoy any person.
A litigant makes a 'claim' before a Court of Justice for the purpose of Section 209 when he seeks certain relief or remedies from the Court and a 'claim' for relief necessarily impasses the ground for obtaining that relief.
The offence is complete the moment a false claim is filed in Court.
The word "claim" in Section 209 of the IPC cannot be read as being confined to the prayer clause. It means the "claim" to the existence or non-existence of a fact or a set of facts on which a party to a case seeks an outcome from the Court based on the substantive law and its application to facts as established. To clarify, the word "claim" would mean both not only a claim in the affirmative to the existence of fact(s) as, to illustrate, may be made in a plaint, writ petition, or an application; but equally also by denying an averred fact while responding (to the plaint/petition, etc.) in a written statement, counter affidavit, a reply, etc. Doing so is making a "claim" to the non-existence of the averred fact. A false "denial", except when the person responding is not aware, would constitute making a "claim" in Court under Section 209 IPC.
The word 'claim' for the purposes of Section 209 of the Penal Code would also include the defence adopted by a defendant in the suit. The reason for criminalising false claims and defences is that the plaintiff as well as the defendant can abuse the process of law by deliberate falsehoods, thereby perverting the course of justice and undermining the authority of the law.
The words "with intent to injure or annoy any person" in Section 209 means that the object of injury may be to defraud a third party. It is not necessary that the party to whom the offender intends to cause wrongful loss or annoyance should be the party against whom the suit was instituted."
Section 209 uses the words 'Court of Justice' as distinguished from a "Court of Justice having jurisdiction." It is therefore immaterial whether the Court in which the false claim was instituted had jurisdiction to try the suit or not.
The prosecution has to prove that the accused made a false claim. A mere proof that the accused failed to prove his claim in the civil suit or that Court did not rely upon his evidence on account of discrepancies or improbabilities is not sufficient.
This section is not limited to cases where the whole claim made by the defendant is false. It applies even where a part of the claim is false. It applies even if a part of the claim is false. The mischief that the drafters intended to address under Section 209 of the Indian
Whether the litigant's 'claim' is false, is not considered merely from whatever he pleads (or omits to plead): that would be to elevate form over substance. To make out the offence, the Court does not merely inspect how a litigant's pleadings have been drafted or the case has been presented. The real issue to be considered is whether, all said and done, the litigant's action has a proper foundation which entitles him to seek judicial relief.
The term "no just ground" in characterising a false claim, means that the substance of a party's claim is crucial. The critical question, accordingly, is whether there are any grounds, whether in law or in fact, to make a claim even if they are not revealed in the pleadings itself.
There is distinction between claims that may be regarded as being legally hopeless and claims that are false. For example, one may characterise a claim that is based entirely on love and affection as consideration as being hopeless in the light of the current state of contract law, but one certainly cannot say that such a claim is false because only the Courts can determine what constitutes good and valuable consideration (or, more fundamentally, whether consideration is necessary under contract law). This category of claims, like many types of claims involving elements of illegality, often involve closely intertwined, and often inseparable, issues of fact and law. A Court should be slow to label these problematic cases as false even if they are ultimately found to be hopeless.
Section 209 was enacted to preserve the sanctity of the Court of Justice and to safeguard the due administration of law by deterring the deliberate making of false claims. Section 209 was intended to deter the abuse of Court process by all litigants who make false claims fraudulently, dishonestly, or with intent to injure or annoy.
False claims delay justice and compromise the sanctity of a Court of justice as an incorruptible administrator of truth and a bastion of rectitude.
False claims cause direct injury to honest litigants. But this injury appears to us to be only part, and perhaps not the greatest part, of the evil engendered by the practice. If there be any place where truth ought to be held in peculiar honor, from which falsehood ought to be driven with peculiar severity, in which exaggerations, which elsewhere would be applauded as the innocent sport of the fancy, or pardoned as the natural effect of excited passion, ought to be discouraged, that place is Court of Justice.
Section 209 was not intended to operate as a trap for lawyers or litigants who may inadequately or incorrectly plead their case. However, a lawyer having actual knowledge about the falsity of a client's claim (or after he subsequently acquires that knowledge), is not supposed to proceed to make that claim in Court and thereby, allow the client to gain something that he is not legally entitled to, or causes the adversary to lose something which he is legally entitled to. A lawyer should decline to accept instructions and/or doubt his client's instructions if they plainly appear to be without foundation (eg, lacking in logical and/or legal coherence). However, a lawyer is not obliged to verify his client's instructions with other sources unless there is compelling evidence to indicate that it is dubious. The fact that the opposing parties (or parties allied to them) dispute the veracity of his client's instructions is not a reason for a lawyer to disbelieve or refuse to act on those instructions, and a lawyer should not be faulted if there are no reasonable means of objectively assessing the veracity of those instructions.
Filing of false claims in Courts aims at striking a blow at the rule of law and no Court can ignore such conduct which has the tendency to shake public confidence in the judicial institutions because the very structure of an ordered life is put at stake. It would be a great public disaster if the fountain of justice is allowed to be poisoned by anyone resorting to filing of false claims.
The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. More often than not, process of the Court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the Court-process a convenient lever to retain the illegal gains indefinitely. A person, who's case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
The disastrous result of leniency or indulgence in invoking Section 209 is that it sends out wrong signals. It creates almost a licence for litigants and their lawyers to indulge in such serious malpractices because of the confidence that no action will result.
Unless lawlessness which is all pervasive in the society is not put an end with an iron hand, the very existence of a civilized society is at peril if the people of this nature are not shown their place. Further if the litigants making false claims are allowed to go scot free, every law breaker would violate the law with immunity. Hence, deterrent action is required to uphold the majesty of law. The Court would be failing in its duties, if false claims are not dealt with in a manner proper and effective for maintenance of majesty of Courts as otherwise the Courts would lose its efficacy to the litigant public.
Truth is foundation of Justice. Dispensation of justice, based on truth, is an essential and inevitable feature in the justice delivery system. Justice is truth in action.
It is the duty of the Judge to discover truth to do complete justice. The entire judicial system has been created only to discern and find out the real truth.
The Justice based on truth would establish peace in the society. For the common man truth and justice are synonymous. So when truth fails, justice fails. People would have faith in Courts when truth alone triumphs.
Every trial is a voyage of discovery in which truth is the quest. Truth should be reigning objective of every trial. The Judge has to play an active role to discover the truth and he should explore all avenues open to him in order to discover the truth.
The object of a trial is, first to ascertain truth by the light of reason, and then, do justice upon the basis of the truth and the Judge is not only justified but required to elicit a fact, wherever the interest of truth and justice would suffer, if he did not.
Section 165 of the Indian Evidence Act, 1872 invests the Judge with plenary powers to put any question to any witness or party; in any form, at any time, about any fact relevant or irrelevant. Section 165 is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this Section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact and thus possibly acquire valuable indicative evidence which may lead to other evidence strictly relevant and admissible. The Court is not, however, permitted to found its judgment on any but relevant statements.
The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or wilfully avoided. A Judge, who at the trial merely sits and records evidence without caring so to conduct the examination of the witnesses that every point is brought out, is not fulfilling his duty.
The Trial Judge is the key-man in the judicial system and he is in a unique position to strongly impact the quality of a trial to affect system's capacity to produce and assimilate truth. The Trial Judge should explore all avenues open to him in order to discover the truth. Trial Judge has the advantage of looking at the demeanour of the witnesses. In spite of the right of appeal, there are many cases in which appeals are not filed. It is mostly with the Trial Judge rather than with the appellate Judge that the members of the general public come in contact, whether as parties or as witnesses.
In the above case, the Hon'ble court finally concluded as under by holding that:
- Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken.
- Making a 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 has been be treated as an offence.
- False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented.
- Unless the judicial system protects itself from such wrongdoing by taking cognizance, directing prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens.
- The justice delivery system has to be pure and should be such that the persons who are approaching the Courts must be afraid of making false claims.
- To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail.
- Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Indian Penal Code and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary.
- If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather.
- Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint.
- Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C.
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