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Report No. 14

40. Administration of Criminal Justice-general

1. Perjury.-

Section 193 of the Indian Penal Code deals with the punishment for perjury. The giving of false evidence in a judicial proceeding or fabricating false evidence for the purpose of being used in a judicial proceeding is an offence against public justice and is punishable with imprisonment of either description for seven years and fine. It has been stated that perjury has of late greatly increased. The sanctity of the oath has almost disappeared and persons seem prepared readily to make false statements on oath in courts of law.

The law, however, is very rarely invoked for the purpose of punishing the perjurer. It is perhaps felt that if punitive steps were to be taken against all persons who give false evidence the number of such prosecutions would be enormous. Nevertheless, steps have to be taken to control this growing evil which tends more and more to bring the administration of justice into disrepute.

2. Procedure for prosecution (Delay).-

Section 195 of the Criminal Procedure Code provides that no court shall take cognizance of the offence of giving false evidence "when such an offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate".

The procedure for laying a complaint is prescribed by section 476 of the Code. When a court is of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in section 195(1)(b) (this includes the offence of giving false evidence), "which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction.".

This section, accordingly, contemplates that when a court, whether suo motu or on an application made to it, feels that it is necessary to prosecute the offender, it may hold a preliminary enquiry and if it comes to the conclusion that it is necessary in the interests of justice that the offence should be enquired into, it shall thereafter make a complaint to a magistrate having jurisdiction. The preliminary enquiry which the court may make is generally undertaken after the close of the case in which the offence is alleged to have been committed. In such an enquiry, it is usual to give the person concerned an opportunity to show cause why a complaint should not be laid against him.

The enquiry extends to the court satisfying itself that an offence appears to have been committed and that the interests of justice require that proceedings should be initiated against the person concerned. On the court laying a complaint before a first class magistrate having jurisdiction, the latter takes up the matter and proceeds to hear the case. The steps prescribed naturally result in proceedings of this character being greatly delayed. Firstly, the court before which the offence appears to have been committed holds an enquiry; secondly, the magistrate before whom the complaint is made has to hear the case in accordance with the procedure relating to the trial of warrant cases.

A considerable interval of time elapses between the commission of the offence and the eventual conviction of the offender. The essence of penal law is that punishment should follow the offence as speedily as possible, if the preventive ends of the punitive law are to be achieved . Delay is also often caused as the law provides for an appeal against an order of the court laying the complaint after the proceeding under section 476. A great deal of the effect of the prosecution is thus lost by the enormous delay in bringing the offender to book.

3. New procedure: section 479A (Defects).-

The recent amendment to the Code has introduced a new provision, section 479A, to deal with certain cases of giving false evidence. It says that where "a Court is of opinion that any person appearing before it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence for the purpose of being used in any stage of the judicial proceeding, and that, for the eradication of the evils of perjury and fabrication of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted.", the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect " This finding has to be recorded at the time of the delivery of judgment.

The court "may", if it so thinks fit, after giving the person an opportunity of being heard make a complaint in writing and forward it to a magistrate of the first class having jurisdiction. It will be noticed that the recording of the finding of the court has to be made contemporaneously with the delivery of the judgment and cannot be postponed as under the procedure outlined in section 476. Yet the court itself is not empowered to take action in the matter but has to lay the complaint before a magistrate. Another innovation introduced by section 479A is that there is no right of appeal from any finding recorded and from an order laying a complaint.

Sub-section (6) of section 479A provides that if in respect of the prosecution of a person, proceedings can be taken under the section but are not in fact adopted, proceedings under sections 476 to 479 will be barred. If, therefore, the court either through oversight or through indifference neglects to take any steps for launching a prosecution against a witness who has given false evidence, the court cannot later act under section 476 and start proceedings after the close of the case. But an appellate court to which an appeal has been preferred from the decision of the lower court may take such action.

4. No doubt, one of the purposes of introducing section 479A into the Code was to ensure an examination of the question of expediency of prosecution of the person who had given false evidence at the time of delivery of judgment in the judicial proceeding. That purpose has been achieved . But the main evil, namely, the time lag between the commission of the offence and the punishment of the offender has not been remedies by the amendment.

5. Speedy punishment necessary (Summary powers of punishment in certain cases) (Limits of punishment) (Right of appeal).-

The evil of perjury can be dealt with effectually only if measures are devised to punish the offender immediately. No doubt perjury is as frequent in civil proceedings, as in criminal cases; but in civil proceedings, it cannot be detected so easily. We may, therefore, for this purpose deal with criminal cases alone and consider how far the punishment of perjury can be made quicker in criminal cases. In cases triable by a court of session, there is a preliminary enquiry of some description by a court different from the one which ultimately tried the case; there is, accordingly, an opportunity for a witness, if he is so minded, to alter his evidence in the trial court. The experience of innocent persons being brought to trial in courts of session on the basis of false evidence given by witnesses in the committal courts or of guilty persons being acquitted on the basis of similar testimony in the courts of session is not infrequent.

In a number of these cases, the witness has deliberately altered his version in the latter court. Even in such cases, the law at present requires the court hearing the case to record its finding under section 479A and to make a complaint to a first class magistrate. It may well be that there are two statements on oath, one contradicting the other, so that the commission of an offence of perjury is not in doubt. Yet, the conviction and the punishment have to be delayed. What is even more important is that the court making the complaint is often in a far better position to judge whether an offence has been committed and to measure its gravity in relation to the particular facts of the case it was trying, than the magistrate who eventually tried it.

It seems to us that in such cases it is very desirable that the court before which the judicial proceeding has taken place and which has recorded the finding should itself be given the power to deal with the offender. If that court has such a power, a person appearing and giving evidence before it would be very careful being aware of the risk that he runs. The swiftness with which the punishment will follow the offence will, we believe, have a deterrent effect on him and will lead to a decline in the incidence of this evil.

We, therefore, recommend that where two contradictory statements on oath have been made by a witness, the court before which the second statement has been made, should have summary powers to punish the offence of perjury. In such cases, a complaint to the magistrate should not be necessary. Since we propose that the matter should be dealt with summarily, we suggest that the maximum penalty that can be inflicted in such cases should be six months imprisonment and/or a fine up to five hundred rupees. Such a convicted person should, however, be given a right of appeal. We think that an alteration in the law in this regard is desirable.

6. Reasons for suggestion.-

The procedure contained in section 476 and the following sections and section 479A is applicable to any civil, revenue or criminal court. The recommendation we have made earlier relates only to criminal courts. The nature of the proceedings in the civil and revenue courts is different from that in criminal courts and it seems to us to be very doubtful if a civil or revenue court can, in the light of the evidence before it, come to a reasonably correct conclusion that a witness has intentionally given false evidence or fabricated false evidence for the purpose of being used in the judicial proceeding before that court.

Such a conclusion must, in the nature of things, necessarily depend upon the decision in the case, which in its turn would rest upon an appreciation of the entire evidence. In criminal cases of the type that we have mentioned earlier the position is different. In such cases, a perjuring witness practically convicts himself by making contradictory statements at different stages of the judicial proceeding. Under our law it is not necessary for a court trying him for the offence of perjury to determine which of the two statements is false.

The criminal court in such an event would have before it two statements of the same witness, both on oath, one contradicting the other. It is obvious that one of such statements must be false. There is, therefore, no reason why such a witness should not be convicted summarily by the court before whom the second or subsequent statement was made; provided, of course, the court feels that the circumstances warrant resort to this summary power. No doubt the special procedure recommended will be useful only in a limited class of cases. Nevertheless, we feel that it will be useful in fighting the evil which is widely prevalent.

7. Objections.-

The suggestion that the court should be given these summary powers did not meet with the approval of a few witnesses. It was said that illiterate persons who might have given a false version in the committing court under pressure, would face the risk of conviction for perjury even if they come out with the truth in the trial court. We are not inclined to agree. The trial court would be in possession of the entire evidence; it should certainly be in a position to assess the contradictory statements in the light of the other evidence and to decide whether either or any of the statements were made voluntarily or under pressure.

While a different court would have nothing more than the two contradictory statements to go upon, the trial court would have the advantage of a knowledge of the entire background to the statements, and would be able to deal with the accused person more justly. We do not believe that any court would act in a mechanical manner and straightaway proceed to a conviction solely on the proof of two contradictory statements. In most cases, it will only be the superior courts that will be called upon to exercise these powers and they can be trusted to administer the law properly.

It is true that there may be numerous cases where even criminal courts may not be in a position to use the summary powers which we have recommended. In such cases, the present law will have to be left to govern the procedure of the prosecution of the offender.

8. Presumption of innocence.-

The expression "presumption of innocence" has no statutory origin. It is an expression in terse language of the principle that the duty lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The expression is in reality bound up with the question of the burden of proof. It has achieved the status of a principle of law in the English system of jurisprudence and also in our own, solely for the reason that the burden of proving every ingredient of the offence, even though "negative averments are involved therein", is cast on the prosecutor. The general principle is relaxed in some cases where a statute permits some facts to be presumed against an accused person as under section 114 of the Indian Evidence Act. The extent to which an accused person is protected will be apparent from the following observations of the House of Lords:-

"Just as there is evidence on behalf of the prosecution, so there may be evidence on behalf of the prisoner which may cast a doubt as to his guilt. In either case, he is entitled to the benefit of doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt. He is not bound to satisfy the jury of his innocence. Throughout the web of English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

If, at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the Common Law of England and no attempt to whittle it down can be entertained."1

1. Woolmington v. Director of Public Prosecutions, 1935 AC 462.

The true scope of the principle.- The presumption of innocence signifies no more than this that the Commission of a crime must be proved beyond all reasonable doubt; in other words as pointed out by Thayer1 "the whole doctrine when drawn out is, first, that a person, who is charged with a crime must be proved guilty, *** so that the accused stands innocent until he is proved guilty; and, second, that this proof of guilt must displace all reasonable doubt". One would have thought that this principle was rooted firmly in the provisions of the Indian Evidence Act which lays down (a) that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, and (b) that a fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances in the particular case, to act upon the supposition that it exists.

1. Cited in Amrita Lal Hazra v. Emperor, 42 Cal 957 (993, 994).

The criticism directed against the principle appears to be more a criticism of the manner in which this principle and the principle of giving the accused the benefit of doubt has been applied and misused by weak and incompetent judges.

9. Criticisms.-

The nature of this criticism can be illustrated by reference to an extract from a publication headed "Law v. Justice:"1

"The current philosophy underlying criminal procedure is epitomised in the dictum: 'Let a hundred guilty men escape but let no single innocent man suffer'. It seems to overlook the fact that there cannot be a single guilty person without at least one innocent person having suffered already, and to let a hundred guilty persons escape is to let at least a hundred innocent persons suffer. It may be law, but hardly justice. In the pursuit of this philosophy, the accused is deliberately and invariably advised to plead 'not guilty' and the onus is thrown on the prosecution to prove conclusively the guilt of the accused, and the benefit of every doubt is given to the accused, resulting often in the acquittal of the guilty, injury to the innocent and defeat of justice by law. It promotes the manufacture of extra evidence, more helpful than truthful."

1. By Shri P. Kodanda Rao-formerly of the Servants of India Society.

Based on a misconception.- In our view, there is very little relation between the dictum referred to in the above extract and the principle which we are considering. It is no doubt undesirable and extremely unfortunate in the interests of society that guilty men should escape. But the conviction of guilty men will not necessarily be assisted by the weakening of the principle that we are discussing namely that a man who is to be convicted must be proved to have been guilty by those who accuse him of the guilt. The relaxation of this principle will not ensure the conviction of more guilty men. By its modification, we would rather make it easier for more innocent men to suffer the penalty of the law.

10. No scope for relaxation.-

The views expressed to us are overwhelmingly against any relaxation of the rule that the accused should be presumed to be innocent and that it is for the prosecution to establish his guilt beyond reasonable doubt. We are of the view that in the generality of cases it would be dangerous to relax the application of these principles.

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