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Greetings, here you can refer to my upload for lecture notes, pertinent case laws, projects matters. Everything is clear and advertently summarized. I also discussed the conclusion and gave some effective suggestions. Further doubts can be mailed to me....

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PERJURY

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY VISHAKHAPATNAM SEPTEMBER 2019

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our IPC law Teacher, Varalakshmi Assistant Professor, who gave a golden opportunity to do this project on the topic “Perjury” which helped me in doing a lot of research work and I came to know about so many new things and I am really thankful to my professor. I am doing this project not only for marks but also to gain knowledge. I have tried my best to collect information about the project using various possible ways to depict the clear picture about the given project topic.

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CONTENTS

1. INTRODUCTION………………………………………………………………...…………..4 2. HISTORICAL BACKGROUND………………………………………………………….….5 3. THE LAW OF LYING……………………………………………….………………….……6 

PERJURY IN JUDICIAL PROCEEDINGS………………………...…………………7

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FALSE STATEMENTS IN JUDICIAL PROCEEDINGS………………..…………..8

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FALSE CLAIMS IN JUDICIAL PROCEEDINGS……………………………….…..8

4. CONCEPT OF PERJURY……………………………………………………………………9 

DEFINITION………………………………………………………………...…………10

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ELEMENTS…………………………………………...………………………………..12

5. FACTORS RESPONSIBLE FOR PERJURY……………………………………………..14 6. PERJURY UNDER INDIAN LAWS……………………………….………………………16 

PERJURY AND INDIAN PENAL CODE, 1860………………………..……………16

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PERJURY AND THE CODE OF CRIMINAL PROCEDURE, 1973…………..…..18

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PERJURY:JUDICIAL APPROACH………………………………………………….19

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EXPERT WITNESS: ROLE AND DUTIES…………………………...……………..22

7. HOSTILE WITNESS…………………….………………………………………………….23 8. RECENT JUDICIAL PRONOUNCEMENTS …………………………………...……….24 9. SUGGESTIONS…………………………………………………………………..………….27 10. CONCLUSION……………………………………………….…………………………….28 11. BIBLIOGRAPHY………………………………………………………….……………….29

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INTRODUCTION

Once, J. Bentham, a great philosopher and thinker of his time, said “witnesses are the eyes and ears of Justice”. Without proper evidence by a witness the justice cannot be imparted fairly. Witnesses are important for delivery of fair judgement. However the witnesses get traumatized and harassed in our criminal justice system and its open secret, which needs no second thoughts. Perjury is defined as an act, whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceedings, shall be punished with imprisonment of either description for a term which may extend upto seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment o either description for a term which may extend to three years, and shall also be liable to fine. The incidence of perjury is rampant in India. In today’s scenario the problem of witness turning hostile is quite evident. The proper cooperation from the witness side is mandatory for maintaining flawless criminal justice system. The witness plays a crucial part in every stage of judicial proceedings and bringing the offenders to justice. Their role at the trial is particularly important in adversarial system where the prosecution must prove its case by leading evidence, often in the form of oral examination of witnesses, which can then be challenged by the defence at a public hearing. While delivering the final verdict of the case, the witnesses assist the court in discovering the truth. But when the witness turns hostile they mislead the courts. This is a common thing happening in today’s criminal justice system. The whole case of the prosecution fails when it depends on the false statements/ claims given by the witness. The result is that more and more citizens are losing faith in the effectiveness of the system in providing justice to the victims. As long as the witnesses continue to go hostile and do not make truthful depositions in court, justice will always suffer and people’s faith in efficacy and credibility of judicial process will continue to be eroded and shattered.1 1 MUKHERJEE SUBHRARAG AND ARYA VATSAL, “INDEPENDENT WITNESSES: A LEGAL CRISIS IN INDIA”, 2004, Cri. L. J. 186 (S.C.)

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HISTORICAL BACKGROUND

Perjury is not a latest crime. Its incidence is found from king’s ruling periods. While framing the Indian Penal Code, it is evident that there was existence of perjury so that is why Lord Macaulay, imbibed it in our country. Oath system is an age old practice. It is believed that people who give evidence shall be bound by that oath and shall restraint themselves from giving false accusations, claims, and witnesses. In India, from the God’s time is prevalent. It is believed that the witness shall be under the fear of god shall not give wrong evidence. Its historical background is as follows: 1. During the king monarchy systems some classes of people were dominated by superior classes of people, wherein to get rid of them they made false accusations and false witness against low class people. They were not given liberties since it’s a monarch, a form of dictatorship. 2. Perjury of rampant in the next generation because of people holding grudges against one another and there is no special rule to observe and control this. 3. The lying of evidence was committed by different sections of people like, kings, business magnets, or professional people. Perjury was added to control the white-collar crime (High profile crimes), because with their power they manipulated their evidences. 4. The sophisticated natures of professional criminals were identified as a reason for perjury. The hard core criminals lied under the oath and used to escape from the judicial proceedings. Sometimes, the innocent person was convicted. In those times punishments were really harsh, mostly physical punishments are awarded. If awarded once cannot be taken back. 5. These are some of the reasons identified as for history of perjury. In the present time also, the perjury is excessive because of the loops in laws.2 In Tangled Webs, James B. Stewart reveals in vivid detail the consequences of the perjury epidemic that has swept our country, undermining the very foundation of our courts. With many 2 JAMES B STEWART, TANGLED WEBS: HOW FALSE STATEMENTS ARE UNDERMINING AMERICA: FROM MARTHA STEWART TO BERNIE MADOFF 49-51 ( Penguin Press HC, 2011).

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prosecutors, investigators, and participants speaking for the first time, Tangled Webs goes behind the scene of the trials of media and homemaking entrepreneur.

THE LAWS OF LYING

There are three major criminal laws of lying that have pervaded public discourse with the time. There are legitimate reasons why we criminalize lying but also perils in going too far. And as the critical investigation in the country continues, the government will need to carefully walk the line by laying the foundation for clear and legitimate enforcement of the criminal law if any of the witnesses lie. The three forms of lying are: Perjury, False statements and false claims during the judicial proceedings. These three forms of lying during the judicial proceedings are considered as means to obstruction of justice. These statements or evidences given shall have a binding nature while judgement id delivered. If they give false evidence then the judgment will be misled. People will lose their faith in the judiciary. There are numerous justifications for criminalizing lying: lies frustrate investigations, waste time and resources, and threatened incorrect results. But lies by government actors threaten even greater harms: they interfere with democratic self-governance by concealing relevant information from the voting public, undermine faith in institutions, and may implicate areas with informational imbalances, making uncovering lies particularly difficult. There is a reason “It’s not the crime, it’s the cover-up” is a truism of investigations into politicians. Oftentimes the lie is worse than the original offense. Yet, despite the values that might be promoted by strictly enforcing criminal laws against lying, there are dangers in overcriminalizing lying as well.  PERJURY IN JUDICIAL PROCEEDINGS: SECTION 193

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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. Essentials: 1. A person must be legally bound a) By an oath or any express provision of law, to state the truth or b) To make a declaration upon any subject 2. He must make a false statement 3. He must know or believe it to be false or not believe it to be true. In the case of Rayipalli Paramesu v. State of AP3, a witness denied on his crossexamination that there was any recording of his statement by the Head Constable. He also disowned his statement recorded by the Investigating officer and stated that his statement before the Magistrate was at the behest of the police. No motive was established against the constable for fabricating the statement of the witness. The court came

to the

conclusion that the witness leaped from his statement while evidence in the court. The court directed initiation of proceedings against him for perjury u/s 191.  FALSE STATEMENT IN JUDICIAL PROCEEDINGS: SECTION 199 False statement made in declaration which is by law receivable as evidence.— Whoever, in any declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorised by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence. In the case of Jagganath singh v. State of Madhya Pradesh4, the petitioner appeared as surety in favour of an accused person. He has filed his affidavit, bail declaration from and title document. It is revealed that the surety was unknown to the accused to the crime and the other party was not a competent for furnishing bail. It was founf that he had filed a false affidavit hence he was charged u/s 199 of Indian Penal Code. 3 1994 CrLJ 93.1 4 2011 CrLJ 3008 (MP)

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Essentials of section 199: 1. Making a declaration that a court or a public servant is bound or authorized by law to receive in evidence. 2. Making of a false statement in such declaration knowing or believing it to be false. 3. Such false statements must be touching any point material to the object for which the declaration is made or used.  FALSE CLAIMS IN JUDICIAL PROCEEDINGS: SECTION 209 Dishonestly making false claim in Court.—Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a Court of Justice any claim which he knows to be false, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.  FALSE EVIDENCE: SECTION 195 Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. In the case of St. Kitts (Chandraswamy) Case5, the respondent, was at the relevant time, serving as Director with the Government of India. A case was registered against Mr. Chandraswamy and others for commission of offences punishable u/s. 120-B read with ss. 195, 469,471 and s. 500 of IPC. The charge sheet in the case known as ST. Kitts’s case, was filed by the CBI before the Chief Metropolitan Magistrate, Delhi on 26 th September 1996. The court took cognizance of the offence against the respondent and others and issued non-bailable warrants. The allegations made against the respondents who were public servants at the time of the commission of the alleged offence, no cognizance of the offence could have been taken against him in the absence of sanction u/s 197 Criminal Procedure Code.

5 (1997) 10 SCC 772

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CONCEPT OF PERJURY

Perjury in general sense is considered as lying. Perjury in legal sense means lying or making verifiable false statements on a material matter under oath or affirmation in a court of law or in any of various sworn statements in writing. Perjury is a crime because the witness/ accused have sworn to tell the truth &, for the credibility of the court, witness testimony must be relied on as being truthful.24 6Perjury is considered as a very serious crime as it could be used to usurp the authority of the courts, resulting in miscarriage of justice. It has been advocated by some of the jurists and judges that mere stringent and swift action for perjury is one antidote to stop the hostile witnesses. The perjury principles and norms are applied to witnesses who have admitted or affirmed that they are telling the truth. A witness who is unable to swear to tell the truth uses affirmative. For example, in the United Kingdom and till a little while ago in India, a witness may swear on the Bible or holy book. If a witness has no religion, or does not wish to swear on a holy book, the witness may make an affirmation he or she is telling the truth instead. In some countries such as France, suspects cannot be heard under oath and thus do not commit perjury, whatever they say during their trail7. The matter of perjury laws recently gathered considerable attention. The offence of perjury is not only applicable to criminal cases, but also extends to other judicial proceeding including civil case being tried by civil courts exercising original jurisdiction. While the problem of perjury in criminal cases is generally confined to giving of false evidence on oath, it has a wider spectrum as far as civil cases are concerned and includes giving false evidence, fabricating false/ forged documents to be used as evidence etc. Statements of interpretation of fact are not perjury because people often make inaccurate statements unwittingly and not deliberately. Individuals may have honest but mistaken beliefs about certain facts or their recollection may be inaccurate like most other crimes in the common law system, to commit the act, and to have actually committed the act (the actus rues). 6 Bhat Sairam, “Perjury: Under Estimated Reasons for Failure of the Justice Delivery System in India”, Kare Law Journal, August 2006 pp. 73-78 7 Ibid

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 Definition: Perjury has been derived from the Latin term ‘perjurium’. As per the Oxford Dictionary perjury means “the offence of willfully telling an untruth or making a misrepresentation under oath.”8 In other words, any person on being lawfully bound under an oath intentionally or wrongfully makes a false statement. Sections 191, 192 and 193 of the IPC deal with giving or fabricating false evidence. What amounts to giving false evidence has been defined u/s 191. “The salient features of the former section are as follows:  Intentionally making a false statement  Declaration by a person who is under a legal obligation to speak the truth.9 The giving of false evidence amounts to the practicing of fraud upon the court. Thus, to make a statement of false evidence within the meaning of this section, it must be established that the person was legally bound by an oath or an express provision of law (A) to state the truth, or (B) to make a declaration upon any subject. The offence can be committed even when the plaintiff or the defendant is not legally bound to do so but binds himself by an oath voluntarily. In other words, he enters the witness box voluntarily, and makes an affidavit to make a truthful sentence, but states something false.

Declaration It was held in Mehrban Singh, that a declaration means a formal statement made in writing and required by law to be made in writing. To invoke the section the statement must be a false statement and the person making it must know or believe it to be false or must not believe it to be true to this section. A false verification of a written statement filed in a suit is an offence under

8 Perjury, Retrieved on 21/07/18 from https://en.oxforddictionaries.com/definition/perjury. 9 K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at Pg. – 331.

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this section. It is necessary to prove that the facts, which if accepted as true, show that the statement made by the accused is not merely incredible, but cannot possibly be true.10 Legally bound by oath or by express provision of Law, Etc It was held in Fateh Ali v Queen Express11 that to hold a person liable u/s 191 it is necessary that the accused should be legally bound by an oath before a competent authority. If the court has no authority to administer an oath the proceeding will be coram non judice (such acts are wholly void) and a prosecution for false evidence will not stand. On the same line, if the court is acting beyond its jurisdiction, the charge will not be sustained.12 The court must be an Indian court, otherwise no offence is committed for which the accused can be held liable in India. Oath An oath or solemn affirmation is not a sine qua non in the offence of giving false evidence. The offence may be committed although the person giving evidence has neither been sworn nor affirmed. An Express Provision of Law Under it sanction of an oath is not necessary. There must be a specific provision of law compelling a person to state the truth. When the accused is not bound by an express provision of law to state the truth, he cannot be charged with giving false evidence. Fabricating False Evidence Section 192 defines the offence of fabricating false evidence. The essence of the offence consists in making a false entry in a book of record or electronic record or in a document containing a false statement so as to cause a judge, a public servant or an arbitrator to entertain an erroneous opinion on any material point. 10 Hari Singh Gour, Penal Law of India, 11th ed., (1987) Vol. II, pp. 1721-1744. 11 (1894) PR No. 15 of 1894. 12 Empress v Chait Ram, (1883) ILR 6 All 103.

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Ingredients:  Causing any circumstance to exist or making any false entry in any book of record or electronic record or making any document containing a false statement,  Doing one of the abovementioned acts with the intention that it may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant, or an arbitrator;” and  Doing such act with the intention that it may cause any person in such proceeding, to form an opinion upon the evidence to entertain an erroneous opinion touching any point material to the result of such proceedings. In the case of Baban Singh v. Jagdish Sitigh13, the Apex Court held that where a witness swears by a false affidavit in a proceeding before a Court, the offence would fall under Sections 191 and 192 and is liable for punishment under the former sections.  ESSENTIAL ELEMENTS OF PERJURY: The following are the essential elements for the offence of perjury to be proved beyond any reasonable doubt: 1. There are four (4) essential elements of perjury: An oath, an intent, falsity and materiality. 2. An Oath: a person must be legally bound by an oath or any express provision of law, to state the truth or to make a declaration on any subject. It is believed that ...