J Bentham, The great Philosopher and thinker of his time , once said ' witnesses are the eyes and ear of Justice' However the witness get traumatized and harassed in our criminal justice system and it is open secret, which needs no second thoughts. unnecessary adjournment for recording the statements in a court, causes them unnecessary harassment .The complainant in case of sexual offences not only faces harassment due to repeated adjournment for recording of their statements but also face humiliation and embarrassment. Therefore this article will deal pros and cons of increasing hostility. Interestingly the code evidence Act 1872, do not refer the term 'Hostile'. The term 'Hostile' has come to be used by the courts for referring to a witness, who resiles from his earlier statement recorded by police under section 161 of code
HISTORICAL BACK GROUND
The problem of hostility has been in news much due to witness turning hostile in high profile case such as 'Best Bakery case' in Gujarat , 'Jessica lal murder case' in delhi and more recently case 'Babulal Nagar case' in Rajasthan .The repeated problem of large number of witnesses turning hostile in these high profile cases had leadto a groeing demand for making change s in our law to effectively deal with the problem of dealing of witness turning hostile. As a result ,the central government introduced in the Rajya sabha code of criminal procedure (Amendment) Bill 2006 but that could not see the light of day for best reasons known to our parliamentarians but prima-faci, the reason seems to be that the heat generated has settled/ subsidized as there have never convictions later on in these vary cases, which caused public resentment against the hostile witness.
THE RELAVENR PROVISIONS UNDER LAW
(i)193. PUNISHMENT FOR FALSE EVIDENCE.
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.
Explanation 1: A trial before a Court-martial is a judicial proceeding.
Explanation 2: An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice.
(ii)196. USING EVIDENCE KNOWN TO BE FALSE.
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.
(iii)199. FALSE STATEMENT MADE IN DECLARATION WHICH IS BY
LAW RECEIVABLE AS EVIDENCE.
Whoever, in an declaration made or subscribed by him, which declaration any Court of Justice, or any public servant or other person, is bound or authorized 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 context of cases under above sections section 195 of the Criminal Procedure Code1is applicable. According to this section the Court shall take cognizance of such offence only on the complaint of such Court or any other Court to which such Court is subordinate. The relevant portion of Section 195 of the Code reads:
(iv)195.PROSECUTION FOR CONTEMPT OF LAWFUL AUTHORITY OF PUBLIC SERVANTS, FOR OFFENCES AGAINST PUBLIC JUSTICE AND FOR OFFENCES RELATING TO DOCUMENTS GIVEN IN EVIDENCE.
(1) No Court shall take cognizance
(a)(i) of any offence punishable under section 172
to 188Of I P C,1860
(ii) of any abetment of ,or attempt to commit such offence, or
(iii) of any criminal conspiracy to commit such offence.
(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),
Section 195 Except on the complaint in writing of that Court, or of some other
Court to which that Court is subordinate. In this context, reference may be made to Section 340 of the Code under Chapter X X VI under the heading "Provisions as to certain offences affecting the administration of justice". This section confers an inherent power on a Court to make a complaint in respect of an offence 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 in evidence in a proceeding in that Court, if that Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in,hereinafter referred to as the Code clause (b) of sub-section (1) of Section 195 and authorizes such Court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words "in or in relation to a proceeding in that Court" show that the Court which can take action under this section is only the Court operating within the definition of Section 195 (3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution in built in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by this Section 340 of the Code should be used with utmost care and after due consideration.
(V)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 subsection (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 in 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 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.
(4) In this section, "Court" has the same meaning as in Section 195.
In the case of established the two pre-conditions for an enquiry held under Section 340(1) of the Code. These are that there has to be prima faciecase to establish the specified offence and that it has to be expedient in the interest of justice to initiate such enquiry.
where the Court held that Section 340 of the Code should be alluded to only for the purpose of showing that necessary care and caution is to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statement in a judicial proceeding. In India, law relating to the offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system.
The Court stressed upon the need to corroborate the falsity of a statement with ample evidence. Mere police evidence was held insufficient to convict the accused. Also where the conviction of the accused was based on his voluntary admission of guilt, his statements were to construed literally and strictly , a case of malicious prosecution, where defendant-respondent was charged under Section 193 of the IPC for having arrested the Petitioner and subsequently lying under oath as to the presence of such orders, admitted during cross-examination that he had previously lied about the orders. SS Dhavan, J held in this case that when a witness comes to Court prepared to make a false statement and makes it, but is cornered in cross-examination and compelled to admit his false statements he cannot claim that the admission neutralise the perjury committed by him. The real test in all such cases was held to be whether the witness voluntarily corrected himself due to realization of his error or genuine feeling of remorse before his perjury was exposed. In the given circumstances, though, the defendant was let off with a warning.has stressed upon stern and effective to prevent the evil of perjury. It remains a fact that most of the parties despite being under oath make false statements to suit the interests of the parties calling them. In the present case the respondent filed an affidavit stating that the age of the then CJI was undetermined by the President of India according to Article 217 of the Constitution of India in another matter in 1991. As regards this the affidavit prima facie was held to have made a false statement. It was not disputed that an affidavit is evidence within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition was prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC. the Bench observed that the mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the `judicial proceeding' or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice. According to Section 199 of the IPC to constitute an offence the declaration made by the accused must be of such nature as may be admissible as evidence in a Court of Law and any public authority or public servant must be bound by law to accept such declaration as evidence. The statement, which is alleged to be false in such a declaration, must be of material importance to the object of the declaration and the accused must have reasonable knowledge of its falsity. If the falsity of the statement is proved then the accused will be punished as he would be for giving false evidence.
In the case ,the falsity of the statement as touching upon any point material to the object of the declaration was held to be essential to constitute an offence under Section 199 of the IPC. The section was subjected to further interpretation the accused was held to have made a reckless and false allegation against a Judge in order to have a revision petition to which he is a party, transferred to another Judge. Dwelling upon the essentials of constituting a crime under Section 199 of the IPC there must be a deliberate false statement. Statement made in a reckless and haphazard manner, though untrue in fact, need not constitute an offence when the person making such statements immediately admits the mistake and corrects the statements. If, however, a person makes a reckless and false allegation against a Judge (or for that matter ant other person) in an affidavit, he lays himself open to prosecution under this section.199 of the IPC:
(i) In my opinion section 344(4) of code should be amended that not withstanding the filling of an appeal or revision against impugned judgment, the trial for giving false evidence shall continue. But the sentence imposed by impugned order shall not be executed till decision of appeal or revision whatever be.
(ii) The court have to play proactive role during the court of trial. The Apex court also in Zahira sheikh case emphasized the duty as well as need to court to play proactive role. Section 311 of code and 165 of Evidence Act confer vast and wide power on court to elicit all necessary material by playing an active role in the evidence recording process.
(iii) Practical experience shoes that whenever a witness resiles from his 161 statement. It happens vary rarely that a witness is informed by the prosecutor or court about the consequences of turning hostile, as such hostile witness after recording of his evidence goes back home without being prosecuted for giving false evidence.
(iv) An another recourse available though not to court but to investing officer of getting the statement recorded under section 164 of code before magistrate. A statement recorded under section 164 of code, can be used for corroboration. Law commission has recommended for making mandatory for the police to get statement of all material witnesses recorded under 164 of code, but in reality ,this provisions is resorted by police only in sexual offences, where complainant/ victim is minor
(v) There is certainly need for a proper legislation frame work for the protection of witness. The legislator can not for a long period of time keep their eyes shut from ground realities.
Amendment should be introduced in law so that the judge administering the oath should caution that he is bound to state truth on oath and if he does not state truth, he shall be prosecuted for giving false evidence so as to save judicial system from to being Deaf and blind
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 Herein after referred as code
 KTMS v/s UOI / SC online.com
 K Karunakaran V/s T V Eachara Warrier AIR 1978 Sc290
 KTS Mohd (supra)
 Suo moto Proceeding against Mr Karuppan, Advocate AIR2001 SC 2004(para12)
 Suo moto Proceeding against Mr Karuppan, Advocate AIR2001 SC 2004(para12) Supra
 1966Cr.L.J 474
 Joitish Chandra v/s State Of BiharAIR 1969SC o7
 M S Jaggi V/S Registrar Orissa High court Cr.L .J 1983 page1527
 AIR 2001 SC 2004 (Supra)
 Law commission of India in its 154th report,1996
 Malimath committee on reforms of criminal justice system 2003