Prosecution for perjury /forgery u/s 340 CrPC
The prosecution of the offence of perjury or forgery done by any person as part of any judicial proceedings, enlisted under Section 195(1) (b) of the Code of Criminal Procedure, 1973 (CrPC), can be conducted only by following a special procedure provided under 340 of the CrPC.
Any person, aggrieved by anybody’s perjury or forgery, can file an application to the court to initiate action in this regard. A civil, revenue, or criminal court, or a tribunal can initiate prosecution on perjury or forgery during any judicial proceedings.
However, the court, where the offence of perjury or forgery took place, has yet another option of conducting a summary trial and punish the persons involved, under Section 344 of the CrPC, as explained at the end of this write up.
What the Section 195 (1) (b) CrPC says
The Section 195(1)(b)(i) CrPC says: When an offence is alleged to have been committed in, or in connection with, any proceeding in any court, no court shall take cognizance of any offence punishable under any of the following Sections of the Indian Penal Code, 1860 (IPC), namely, the Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive), and 228 of the IPC.
The Section 195(1)(b)(ii) CrPC says: When an offence is alleged to have been committed in relation to a document submitted or given in evidence in a proceeding before any court, no court shall cognize the offence under Section 463 or Sections 471, 475, or 476 of the IPC.
The Section 195(1)(b)(iii) CrPC says: A criminal conspiracy to commit, attempt to commit, or abetment in the commission of any of the offences listed in Section 195 (1) (b) (i) or (ii) of the CrPC may only be brought before a court on a written complaint from that court, or another court to which it is subordinate.
The court where the offence occurred to make a complaint
Therefore, to prosecute a person for perjury or forgery that was done as part of a judicial proceeding, the court where the offence was committed should make a complaint.
The complaint must be in writing either by the presiding officer, or by an officer duly authorised by that court, or by some other higher court under which the court comes, to the Judicial Magistrate having jurisdiction to take cognizance of the offence.
Complaining court initially should make an enquiry
The court, which decides to make a complaint, should conduct a preliminary enquiry, record the findings of that enquiry, and should find that there was a deliberate and conscious attempt to interfere in the administration of justice, to forward such a complaint to the Magistrate.
If the accused is acquitted in the proceeding, the court should not make a complaint under Section 340 of the CrPC.
Complaint should be made only when necessary
The Supreme Court (SC) in Ashok Kumar Aggarwal v Union of India & Ors ( AIR 2014 SC 1020) says, “in order to initiate prosecution for perjury, the court must prima facie reach a conclusion after holding preliminary inquiry that there has been a deliberate and conscious effort to misguide the court and interfere in the administration of justice. More so, it has to be seen whether such a prosecution is necessary in the interest of justice”.
The court must decide prosecution at the time of judgement
The SC in Narayanswamy v State of Muharashtra, [(1971) 2 SCC 182] states that for exercising the powers under the Section 340 CrPC, the court at the time of delivery of judgment or final order must express an opinion that the witness before it has either intentionally given false evidence or fabricated such evidence.
The court must also come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness.
And the third condition is that before commencing the summary trial for punishment the witness must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions are mandatory.
The court has ample discretion to drop the case
If the court, which conducts the preliminary enquiry, finds that it is not proper to forward the complaint to the Magistrate, the court has every right to do so.
That means the court, which is expected to forward the complaint, has judicial discretion in deciding whether to forward the complaint or not.
Every incorrect or false statement does not make it incumbent upon the court to order prosecution for perjury.
Higher court can step in when there is lapse
If a court improperly uses the discretionary power and abstains from its duty to forward complaint in a genuine case, the higher court has enough power to initiate action on the perjury. It is a corrective provision.
Giving false oral evidence has become a way of life
The SC in Mahila Vinod Kumari v State of Madhya Pradesh states, “The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively, it is desirable for the courts to use the provision more effectively and frequently than it is presently done”.
But unfortunately, there is no sincere attempt to correct this malady afflicting our judicial process, and to put an end to consequent injustices of varying forms.
Appeal on the application by the concerned
A person who filed an application for prosecution in this regard can file appeal to the superior court, of the former court and the superior court will take a final decision, on which no revision is permissible.
The court, which deals with the application or the appeal on it, can impose cost on the applicant, if necessary.
Summary trial u/s 344 CrPC is an alternate remedy
The court initiating a complaint u/s 340 CrPC has an alternate remedy as well. The court can try the offence of knowingly or wilfully giving false evidence or fabricating evidence, can conduct a summary trial and punish the concerned person, under Section 344 of the CrPC, as an alternate measure.
The punishment under this section would be a sentence of imprisonment up to a period of three months, or a fine of Rs 500/- or both.
Further reading
- Ganapathi Swami P S v Karthikeyan & Others: 2017 (2) KLD 889 / Crl A No 584 of 2004 of Kerala High Court
- Ashok Kumar Aggarwal v Union of India & Ors : AIR 2014 SC 1020
- Mahila Vinod Kumari v State of Madhya Pradesh
- Indian Penal Code, 1860
- The Code of Criminal Procedure, 1973
