Merely making contradictory statement in a judicial proceeding is not perjury

Merely making contradictory statement in a judicial proceeding is not perjury [read order]

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The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code; but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Thus, merely making contradictory statement in a judicial proceeding may not amount to perjury. This is what has been held by the Supreme Court bench comprising Justice Kurian Joseph and Justice Rohinton Fali Nariman, in the case of Amarsang Nathaji As Himself And As Karta And Manager V. Hardik Harshadbhai Patel And Others [Civil Appeal No. 11120 OF 2016 (Arising out of S.L.P.(C) No. 13749 of 2016); decided on 23.11.2016].

The above case before the Supreme Court involved challenge on legality of the proceedings under Section 340 of the Code of Criminal Procedure, 1973 initiated by the Gujarat High Court as part of the impugned judgment dated 12th/13th April, 2016 in Appeal from Order No. 489 of 2013. The High Court, on account of the contradictory stand taken by the party, took the view that the conduct of the party had affected the administration of justice, and therefore, it was expedient in the interests of justice to file a complaint against the appellant under Section 340 of the Cr.P.C.

The Supreme Court held that there are two pre-conditions for initiating proceedings under Section 340 CrPC –

(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-Section (1) of Section 195 of the CrPC; and

(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

The court held that even where it emerges that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. [relying upon: K.T.M.S. Mohd. and Another v. Union of India, (1992) 3 SCC 178]. The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.

Relying upon the decision in Pritish v. State of Maharashtra and Others, (2002) 1 SCC 253, the court observed that in the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 of the CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course.

The Supreme Court referred to the Constitution bench decision in the case of Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, wherein the scope of Section 340 of the CrPC was interpreted as under:

“In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. …”.

The Supreme Court held that in the present case, the high court in the impugned order has not followed the procedure in making the opinion that it was expedient in the interests of justice to file a complaint against respondent no.1 in exercise of the powers conferred under Section 340 of the CrPC and directing the Registrar (Judicial) of the High Court of Gujarat, Ahmedabad “to make complaint against respondent no.1 in view of the findings recorded by the court for the offence under Sections 199 and 200 of the IPC….”. Having regard to the subject matter of the complaint and subsequent developments (parties had decided to amicably settle some of the disputes), the Supreme Court allowed the appeal and set aside the order of the high court to the extent of initiation of the proceedings under Section 340 of the CrPC.

Read full order of the court:

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