Perjury: Fine prints about the process

Background

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 Penal Code, 1860 (hereinafter referred to as “IPC”), or for that matter in the Criminal Procedure Code (CrPC). However, the Supreme Court in Kishorbhai Gandubhai Pethani v. State of Gujarat¹ 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 IPC 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 Penal 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.

Rule of audi alteram and its application at a 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 FIR or a stage prior to taking of the cognizance. Whether the proposed accused can be heard at a stage prior to registration of FIR came for consideration before the Supreme Court in Anju Chaudhary v. State of U.P.², 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: firstly, the Code does not provide for any such right at that stage, 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 v. W.N. Chadha³ 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 CrPC 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 complainant as these offences are against the public justice.

Section 340 CrPC further enumerates the procedure to be followed in respect of the offences mentioned under Section 195 CrPC provides for a bar of taking cognizance of the offences inter alia mentioned under Sections 193–196 IPC. 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 v. Balbir Singh⁴ while explaining the scope of the inquiry under Section 340 CrPC 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 CrPC

It is often claimed on behalf of a person against whom court may initiating the proceedings in terms of Sections 195(1)(b)/340 CrPC, that such the accused must 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 v. State of Maharashtra⁵, wherein it was observed as under:

“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.”

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 previous judgments that says that the accused does not have any right of being heard at a pre-cognizance stage.

The Supreme Court in Sharad Pawar v. Jagmohan Dalmiya⁶ however departed from the settled legal position as held in Pritish⁷ and observed that the proposed accused must be given an opportunity of being heard in the inquiry under Section 340 CrPC.

The said issue once again came for consideration in State of Punjab v. Jasbir Singh⁸ wherein the Court noted the conflicting decision in Sharad Pawar⁹ and Pritish¹⁰ 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 Choudhary¹¹ 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 Pritish¹² in Sharad Pawar¹³ was not legally tenable and in the humble opinion of the author, the larger Bench is likely to affirm the ratio of Pritish¹⁴ says that the proposed accused does not have any right of being heard at the stage of inquiry under Section 340 CrPC.