Report No. 42
Of False Evidence and Offences Against Public Justice
Perjury and other offences against public justice are dealt with in considerable detail in this Chapter. The range of these provisions is wide and nearly everything calculated to obstruct the administration of justice has been covered. It has, therefore, been unnecessary for us to make many changes, except to remove working difficulties.
11.2. Definitions in sections 191 and 192.-
Section 191 defines 'giving false evidence', and section 192 defines 'fabricating false evidence', while the three punishing sections that follow treat the two alike. Under section 191, when a person who is legally bound to state the truth or to make a declaration, makes any statement which is false and which he knows or believes to be false or does not believe to be true, he gives false evidence. Under section 192, if a person causes any circumstance to exist, or makes any false entry in any book or record, or makes any document containing a false statement, intending that any of these may appear in evidence and mislead the person dealing with the matter, he fabricates false evidence.
11.3. Accused persons to be equally bound.-
Regarding these definitions, one suggestion noticed by us was that an accused person, while defending himself against a criminal charge, should be put outside the scope of section 191 as well as section 192, the argument being that it is too much to expect that a person accused of a serious offence would not be tempted to give or fabricate false evidence. We are unable to accept this. It is quite true that an accused making a statement under section 342 of the Criminal Procedure Code cannot be prosecuted if any part of the statement is false but that is because the accused is not legally bound to state the truth.
If, however, the law requires that he must state the truth, e.g., when he gives evidence under section 342A, there is no reason why he should not be bound by that requirement. We see no justification generally for giving a licence to any accused person to obstruct the course of justice, by planting false or fabricated evidence in court.
11.4. Materiality of false statement under section 191.-
Another suggestion put before us was that like section 192, section 191 should specifically provide that a false statement made by a person must be material to the matter under investigation. We are not persuaded that it is either necessary or advisable to do so. A prosecution for giving false evidence can begin only if the authority before which false evidence is given considers it expedient1; and, when the question of instituting such a prosecution is raised, the question of materiality can be properly considered. No harm has been caused by the existing definition and we do not propose any change.
1. Section 476, Code of Criminal Procedure, 1898.
11.5. Fabricating false evidence which is inadmissibl.-conflict of views.-
Regarding section 192, there seem to be some conflict of decisions as to whether fabricated evidence which may not be admissible is within the definition. While the Allahabad1 and Patna2 High Courts have taken a narrow view, the Calcutta view3 is that, under section 192, it is the intention that creates the criminal offence, and the question whether, under the terms of the law the document is admissible in evidence or not is immaterial. That Court observed.-
"The decisions of High Courts in India, at any rate some of them, would seem to show that section 192 is limited to such cases as those in which the fabricated evidence is, in fact, admissible under the terms of the law of evidence. Speaking for myself, I have the gravest doubt whether those decisions are correct. I think the words of the section will show that it is the intention that creates the criminal offence and not the fact as to whether, under the terms of the law, the document is admissible in evidence. The view expressed in the cases mentioned might raise a considerable difficulty in cases where the judge has improperly admitted in evidence a document not admissible under the terms of the law."
In a later Calcutta case,4 it was held that the mere fact that a document would be ultimately inadmissible in evidence, does not necessarily take it out of the mischief of section 193.
In an early Lahore case,5 the Court stated the position as follows.-
"The appellant did not produce Ex. P.C. 2 in original but a copy thereof, Ex. P.A. The weight of authority is in favour of the view that there can be no fabrication of false evidence within the meaning of section 192, I.P.C., if the evidence is not admissible in itself."
A later Lahore case6 however, holds that a person is guilty of fabricating false evidence if he makes a false entry in a document, intending that it shall appear in evidence and mislead the Judge or Magistrate, and the mere fact that the entry is not legally admissible in evidence cannot affect his guilt.
1. Emp. v. MuIla, 1879 ILR 2 All 105;
Emp. v. Gauri Shankar, 1883 ILR 6 All 42;
Q.E. v. Nand Kishore, 1897 ILR 19 All 305;
Q.E. v. Zakir Hussain, 1898 ILR 21 All 159; and
Emp. v. Mulai Singh, 1906 ILR 28 All 402.
2.Mangal Singh v. State, AIR 1956 Pat 154 (156, 157).
3.(a) Barada Kanta Sarkar v. Emp., AIR 1916 Cal 553 (554).
(b) No opinion was expressed on this point in Mohammed Kazim Ali v. Jorabali Nadar, 1919 ILR 46 Cal 986: AIR 1919 Cal 430. (Only a query raised).
4.Mahesh Chandra v. Emp., ILR (1940) 1 Cal 465: AIR 1940 Cal 449.
5.Fazl Ahmed v. Emp., AIR 1914 Lah 433 (435, 436).
6.Amolak Ram, AIR 1918 Lah 192, dissenting from AIR 1914 Lah 433.
11.6. Wider view preferred and explanation recommended.-
We would prefer the wider view. If evidence is fabricated with the peculiar intent mentioned in section 192, we see no reason why the fabrication should not be punished. To allow the matter to be determined by the admissibility of the evidence is to leave it to fluctuate with the decision of the presiding officer as to the admissibility, and this is not a satisfactory position. We propose to make the position clear by adding a specific explanation in section 193.
11.7. Controversy about "judicial proceeding".-
The expression "judicial proceeding" which occurs in sections 192 and 193 has not been defined in the Code. Though controversy often arises whether a particular proceeding is or is not a judicial proceeding, Courts have refrained from attempting a definition, choosing to decide each case on a consideration of the nature of the proceedings, the body before which they were held, the parent legislative provision and other relevant circumstances. We also have come to the conclusion that a precise and satisfactory definition is not possible. We considered whether judicial proceedings should be confined to proceedings in a court of justice, but felt that such a definition would be very narrow.
11.8. Section 19.-amended.-
(i) Explanation 2 to section 193 becomes pointless if commitment proceedings are abolished. It should, therefore, be omitted, as also the illustration pertaining thereto.
(ii) For the reasons given in paragraph 11.6 above, we purpose that, in its place, the following Explanation be inserted.-
"Explanation 2.- For the purpose of this section, it is immaterial whether the fabricated evidence is or is not legally admissible in the proceeding in which it is intended to be used."
11.9. Sections 194 and 19.-amendments proposed.-
(i) Sections 194 and 195 provide for aggravated forms of giving or fabricating false evidence. It strikes us that primarily, both these sections are intended for cases where false evidence is given or fabricated for production in criminal courts. We think that it will make for clarity if that is expressly put into both these sections; and although, in the result some cases now covered by sections 194 and 195 may fall outside them, no great harm will occur, as these cases will remain covered by section 193 which provides adequate punishment.
(ii) The second part of section 194 punishes only the person who gave false evidence, and not the person who fabricated it; but there is no reason why fabricating false evidence should not be treated the same way as giving false evidence. We propose to add the words "or fabricates" after the word "gives".
A suggestion was made that the fabrication of false evidence should be punishable under section 194 only if such fabricated evidence is actually used in court. There seems to us no justification for that and so long as evidence is fabricated with intent to use it in court, it is immaterial whether the evidence is actually used or not.
(iii) As regards the punishments prescribed in section 194, we feel that life imprisonment as an alternative to ten years' rigorous imprisonment in the first paragraph is hardly necessary and may be omitted. The maximum sentence for the offence may be rigorous imprisonment for fourteen years.
(iv) As a consequential amendment in the second paragraph, the words "or imprisonment for life" will have to be added after the word "death".
(v) With these amendments, sections 194 and 195 would read as follows.-
"194: Giving or fabricating false evidence with intent to procure conviction of capital offence.- Whoever gives false evidence in any trial before a Court of Justice or fabricates false evidence for the purpose of being used in any such trial, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of a capital offence, shall be punished with rigorous imprisonment for a period which may extend to fourteen years, and shall also be liable to fine; and if any innocent person shall be convicted and executed in consequence of such false evidence, the person who gives or fabricates such false evidence shall be punished with death or imprisonment for life or the punishment hereinbefore described.
195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for seven years or upwards.- Whoever gives false evidence in any trial before a Court of Justice, or fabricates false evidence for the purpose of being used in any such trial, intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which is not capital, but punishable with imprisonment for a term of seven years or with a more severe sentence shall be punished as a person convicted of that offence would be liable to be punished."
(vi) The illustration to section 195 is hardly necessary and may be omitted. 11.10. Sections 196 to 198.-Sections 196 to 198 need no change.