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alia_alian (journalism)     20 June 2013

Family law vs perjury

For better understanding of this thread, please read CrPC 195 and CrPC 340 and IPC sections as mentioned in the respective Codes. I have taken literal meaning of them and not exact words of these Sections for point of view of layman's understanding.


Perjury in simple terms means a crime in which a person has knowingly lied after taking an oath to tell the truth. Or when testifying in court through legal document like Affidavit. This lie must be material to the matter concerned so that it results in miscarriage of justice.

 
For the tecnical detail, please refer to the following entry in Wikihttps://en.wikipedia.org/wiki/Perjuryand for definition refer tohttps://www.answers.com/perjury.


Now, as you all know that I am no legal pundit or an advocate, but I would try to explain this as clearly as possible in the terms as I understand. However, please don't treat this as gospel truth and contact your counsel for much much better understanding.


To further explain what kind of lies in court can attract perjury, as there is a broad set of lies which can attract perjury, the thumb rule is that to attract perjury such statement should satisfy following:


1. The statement was given when bound by oath.
 That means either during evidence stage after administration of oath or on a sworn affidavit.


2. That statment is false and the person giving such statement knew that such a statement is false.
 (unknowing lie or a make believe lie does not attarct perjury, I can explain this if someone is in any doubt as to what it means and if someone wants at a later stage.)


3. That statement was made intentionally to cause miscarriage of justice.
(That means it touches the material point of the case in question, which can either befool court or mislead the court in passing orders, which can result in undue harm to other party or unlawful gains to the party giving statement. i.e. Knowing that A earns Rs. 5000/- and not entitled to any relief, A states under oath that he is unemployed. or A accuses B of beating him on X date and time at Y place, to get B imprisoned. Whereas there was no possibilty that B could have done so on X date and time at Y place as B on X date and time was at Z place which makes it impossible that B could have been at Y place also at the same date and time. or A states that he saw B doing a certain unlawful act at X date and time at Y place, whereas A himself at X date and time was at Z place, which means he could not have seen B committing any crime at Y place. Now all these conditions can cause miscarriage of justice.)


Hence, there would be certain lies which does not attract perjury, like A stating his wrong age in proceedings where whether A is 20 years old or 30 years old makes no diffirence.


Also, there is another interesting aspect, willful ommission.
 That means A though is earning Rs. 5000/- and not entitled to any relief, neither states that A is unemployed nor states his true income. Is that perjury? Yes, it is. If the express provision of the law provides that A is entitled for relief only if he is unemployed. i.e. In CrPC 125, the express provision of the law is that only the women who has no source of livelihood is entitled to claim maintenance. By not stating her income that woman is inducing the court to believe that she is not earning and thus liable for perjury. So these kind of ommissions can attract perjury on a case to case basis, however not always. For more details, please refer to the following Judgement.


Now, that we have got basic understanding of what is perjury, the next stage is how to file a perjury complaint.


Here comes the first bar. We call it the bar of CrPC 195. Though this bar is applicable to many cases, in perjury, CrPC 195 bars any private complaint dealing with offences punishable under sections 193 to 196, 199, 200, 205 to 211 and 228, when such offences is alleged to have been committed in, or relation to the proceedings of the court except on the complaint in writing of that court, or of some other court to which that court is subordinate.


The way out is given in CrPC 340 and CrPC 341, which says the court can suo-motto or upon an application (the word application has a meaning akin to request) forms an opinion that "it is expedient in the interest of Justice" (Note these words, that means that if such a proceeding is not carried out, it would be miscarriage of justice) that inquiry of such allegations be carried out, should after preliminary inquiry, is any, as it thinks necessary (to make out whether the prejury has been committed) should:


1. Record a finding to this effect.
2. Make a complaint thereof "in writing":
3. Send the person accused of committing perjury to a magistrate of first class jurisdiction by taking sufficient security or under arrest as the severity of the offence of perjury may be.


And, when the concerned court has not taken any action of such application. The applicant may move higher court under CrPC 341 as appeal. The party against whom any such action is taken is also free to move in for appeal in the same manner. The higher court may order withdrawl of complaint or direct filing of complaint as the case maybe. Of course, it can also agree with the finding of the below court.


And CrPC 343 states that the magistrate to whom such a complaint is made. (Not to the magistrate or judge to whom application is made, but to whom the complaint is forwarded in writing by that Judge or Mgistate to whom one made an application) should deal with such complaint as if the same is made on a Police Report (namely chargesheet).


So the lesson is that one can not be complainant in perjury proceedings. One can only be the applicant. The concerned court is the complainant. Now what happens to the main case. The case is generally deferred till this perjury issue is decided. But this is not necessary. The court can still proceed with other aspects of the case. Though nowhere written in the code, but an unwritten rule is that perjury complaints are filed when there is high likelyhood of the person against whom perjury proceendings are started being convicted. (or if its written somewhere, I might have overlooked, no willful omission here :) )


But this lesson, what we learnt in above pasaage, is also not iron clad. In Marwah Vs Marwah, the apex court has ruled that the aggrieved party can not be left remedyless. Hence it has allowed private complaint in that particular case. There are few other success stories in this and associated forums based on the same judgement. Why law is like this is a long story, but the lawmakers had some noble intentions of keeping it this way to stop misuse of this provision and reduce litigation. (Guess, if every application was accepted, there would be a 3 fold increase in cases.)


So to summarise:

1. The court is not bound to start prosecution even if some lie has been made in the court under oath or affidavit.


2. It is bound to take acttion only if it is expedient in the interest of justice and affects administration of justice.


3. Perjury should appear to be deliberate and conscious, meaning that the offence of perjury has been committed intentionally.


4. There is likelyhood of conviction. For that the foundation should be reasonable and supported by strong evidence.


Now, let me also add as a footnote what does not amount to perjury.


1. The complaint which becomes the basis of FIR is not basis of prosecution u/s 340. You have to wait for the complainant to depose before the court.


2. The witness statements given to police u/s 161 are not evidence and can not be basis of prosecution u/s 340. You have to wait for all such witnessess to depose before the court.


3. Mere contradictory evidence is not enough for prosecution. However, two such contradictory statements, which can not both be true at the same time by any flight of imagination and touches the material point of the case can be the basis of perjury.


So in 498-A and maintenance and DV kind of cases, the material point of the case can be:


1. Factum of marriage. (Whether there was a marriage or not)
2. The income of any of the spouses.
3. Any date and time of alleged cruelty, which can be countered in a manner as shown by example shown above.
4. Date and Time of last staying together and Reason of leaving (only if supported by strong evidence)
5. Witnessess who claim to be present at the date and time of alleged cruelty.
6. Two contradictory statements, which can not both be true at the same time by any flight of imagination.
7. The list of articles given as dowry, if she is claiming anything lawfully yours as her own.


Now, the punishment. The perjury can be punished upto seven years or an if the perjury was committed to bring the accused to imprisonment of life or death penality by upto 10 years and fine. However, the court can impose lesser sentence and fine depending upon the severity of the offence.


Another thing to be noticed is that, a person can retract his statement in court by filing an apology before perjury application is accepted and telling the truth. That would mean condonation of perjury. But note that such filing of the retractment of statement has to be done before the other party files perjury application. It is also a crime to induce another person to commit perjury that is called suboration of perjury.

In case of any question / query, please feel free to punch me. I would try to answer to the best of my knowledge and capabilities.


PS: The following are from articles I found on net, it is apt to quote some excerpts here:


It is taken for granted that the Indian judicial system turns a blind eye to the incidence of perjury. Although perjury occurs regularly in the Indian courts, nothing concrete is done to eradicate this evil. It is shocking when one considers the number of witnesses who lie under oath in courts everyday. This insidious practice erodes the very fabric of justice.


It cannot be denied that the incidence of perjury in India is widespread. In fact, the Supreme Court has also said, "unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts also, "most of the witnesses... make false statements to suit the interests of the parties calling them." In fact, in a recent case, the Supreme Court ordered a complaint of perjury to be filed against Advocate R. Karuppan, who was also president of the Madras High Court Advocates Association. The apex court, while stating, "If the system is to survive, effective action is the need of the time," also acknowledged the fact that perjury was "not an exception to the general practice being followed by many of the litigants in the country." Unfortunately, however, one must consider that Karuppan may well have been able to elude the law, if the aggrieved party not been Chief Justice of India, A.S. Anand, himself.


A major setback in the administration of justice is the extremely over-burdened legal system. The numerous cases of perjury that proliferate the system cannot possibly be dealt with. To best illustrate this, we have the Prem Chand Paniwala case, tried by the Supreme Court, about twenty years ago. The judgment threw light on the manner in which the police themselves abet perjury in criminal cases. Paniwala was a witness, regularly called upon by the Delhi police to substantiate--- in most cases-- falsely a particular testimony. He also produced the summons he received in hundreds of criminal cases. Once he decided he had enough, Paniwala decided to stop appearing as a stock witness. The police retaliated by implicating him in a couple of criminal cases and even initiated action to extern him from Delhi. This finally prompted him to take recourse in the Supreme Court. What is most interesting to note is that though the Supreme Court reprimanded the police for abusing the judicial process with their stock witnesses, it fell short of reopening the other cases that Paniwala had testified in. The reason: the courts are just too busy!


This is a deplorable state of affairs, especially when one remembers that in Britain, the bestselling novelist and peer in the House of Lords, Jeffrey Archer, was sentenced to jail for fabricating his own diary in a libel suit. The basic attitude towards perjury is radically different. In Britain, the matter of perjury is so serious that a man of Archer''s stature could be convicted for four years! In U.S. federal law, and in most states, a false statement must be material to a point of inquiry in order to constitute perjury.


It is a matter of concern that in the Indian judicial system, so little importance is given to perjury. It is absolutely necessary to emphasise the importance of ensuring respect for the rule of law and human rights when it comes to administering justice properly and expeditiously. Any excuses that the courts have more than enough to contend with in terms of the great backlog of cases must not be accepted. One has only to consider the numerous litigants who have suffered on account of unscrupulous witnesses to bring home the seriousness of the problem to be. The plight of these hapless victims of perjury can never be redressed.


 11 Replies


(Guest)

What a brilliant post!

Harsh (Manager)     21 June 2013

@author

very informative, but something doesnt seem ok to me.

* A complaint, THE basis of FIR, can not be used for Perjury even if there are clear lies.

* One has to depose before the court - now that happens very late in the process by that time all damage is done.

* One can retract his/her statements by filing an apology.

As we all know, most of 498a complaints are 100% false based on which a FIR is registered, arrests happen, jail/bail etc. and the case.

After INTENTIONALLY giving a false complaint and subjecting the accused to so much pain and humiliaiton -- the complainant can simply file an apology

and get away?  It doesnt seem so easy to me. there has to be some provision to bring such liars to the books.

Otherwise its just way too easy to file false murder, theft, mugging, rape and what not cases and file a written apology.

Harsh (Manager)     21 June 2013

@nj

When:

after FIR ? (Justice served)

after chargesheet ?  (Justice served)

after witness/statement under oath? (Justice Delayed)

after Judgement ? (Justice Denied)

thanks

Harsh

Krish Narayan (Advocate)     21 June 2013

Really brilliant and educative article...... Thanks.....


(Guest)

Good one there !

Srinivas (Director)     21 June 2013

Great post. Thanks.

dr.pawan rajyan (member and secretory)     21 June 2013

very informative.thanks alot

Ranee....... (NA)     21 June 2013

very good artcle.

Roshni B.. (For justice and dignity)     21 June 2013

excellent aalia.well done.very nice post. keep it up.

 

i wish i cud give you more than 1 thanks

Adv k . mahesh (advocate)     21 June 2013

the article and the judgement is good 

the elobaration was appreciable work from your end 

Atur Chatur (LAWYER ADVOCATE NOT REQD BECAUSE I FIGHT MYSELF PARTY-IN-PERSON (aturchatur@yahoo.com))     30 May 2015

author covered most of the aspects in a concise manner. appreciate a lot.


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