By Bibek Debroy
Chairman, economic advisory council to the PM Views are personal
Thou shalt not bear false witness against thy neighbor”. That’s one of the commandments. Dharmashastra texts had stringent penalties against those who gave false evidence. But those are in the past. Surely, Indian Penal Code (IPC) has something about false evidence. There is an entire Chapter XI on “false evidence and offences against public justice”, though only initial sections of this section are on false evidence. Section 191 of IPC states, “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”.
Lying isn’t an offence. It is an offence only when there is a legal obligation to speak the truth, such as through an oath. Hence, etymologically, perjury means to take a false oath. “Perjury, perjury, in the highest degree”. Perjury isn’t a word used in IPC. Let’s leave such words to Shakespeare. Let’s stick to “false evidence”. Section 193 of IPC adds, “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”.
That sounds like a sufficiently stiff deterrent. You can have your own take on why deterrence is deceptive—Jessica Lal, BMW hit and run. Here is a Supreme Court take: Justice Wadhwa in Swaran Singh vs State of Punjab, 2000, “Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340 (3) of CrPC (Criminal Procedure Code) in this respect as the High court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in chapter XXVI of CrPC”.
For the moment, ignore the reference to CrPC. Here is a second Supreme Court take, from Mahila Vinod Kumari vs State of Madhya Pradesh, 2008, “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”. In the first take, Supreme Court tells us perjury has become a way of life. In the second, the Court tells us perjury has assumed alarming propositions.
Isn’t it odd that Supreme Court should say this? (It actually gets worse. I haven’t quoted the Supreme Court’s judgment in Ramrameshwari Devi and others vs Nirmala Devi and others, 2011). With those IPC penalties, shouldn’t courts be punishing false evidence instead of lamenting it? Ask lawyers or judges about instances where false evidence has been penalised. They will find it difficult to think of such instances. Shakespeare did get it right: There is no scourge for perjury. The reason has to do, but only a bit, with CrPC and the procedure for violation of those IPC sections.
Legalese sometimes sounds more forbidding than it is. Section 340(1) of CrPC requires, “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 having 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 to do so, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate”. Section 340(3), mentioned by Justice Wadhwa, adds, “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 or by such officer of the Court as the Court may authorise in writing in this behalf”. It isn’t only a case of legalese sounding forbidding, the procedure is indeed cumbersome.
However, this is also a red herring. There is a summary procedure under Section 344 of CrPC, an alternative to Section 340. In how many instances have courts used this summary procedure? I don’t have data, but anecdotally, there haven’t been too many cases. The Magistrate/Sessions Judge will have to (a) express an opinion that the witness has given false evidence; and (b) explain why the summary procedure must be used. I don’t think judges are keen to do either.