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Report No. 170

Chapter R II

Procedure visualised for prosecution in case of perjury during judicial proceedings

6.2.1. Existing procedure under the Code of Criminal Procedure, 1973:- Under the Code of Criminal Procedure, the relevant provisions can be found under section 195(1)(b), sections 340, 341, 342, 343 and 344.They deal with matters relating to perjury and giving of false evidence before courts during judicial proceedings.

6.2.2. A perusal of section 195(1)(b) shows that offences under sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and section 228 as well as those falling under section 463, 471, 475, 476 of the IPC, shall not be taken cognizance by a court except on the complaint in writing of that court, or some other court to which that court in subordinate. Section 340 lays down the procedure for initiating the proceedings for prosecuting the persons for the offences mentioned in section 195.This section is intended to be complementary to section 195. Whether, suo motu or on an application by a party, a court being already seized of a matter under section 340(1) may be tentatively of opinion that further action against some party or witness may be necessary in the interest of justice.

In such a proceeding, the reasons recorded in the principal case in which a false statement has been made, have a great bearing. Thus in an enquiry under section 340(1), the only question is whether a prima facie case is made out which, if unrebutted, may have reasonable likelihood of establishing the specified offence and whether it is expedient in the interest of justice to take such action. The court concerned may, after holding preliminary enquiry, 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 so to do, send the accused in custody to such magistrate and

(e) bind over any person to appear and give evidence before such magistrate

6.2.3. Under sub-section (3) of section 340 a complaint made under this section shall be signe.-

(a) where the court making the complaint is a High Court, by such officer as the court may appoint;

(b) in any other case, by the presiding officer of the court. Section 343 lays down the procedure to be followed by a magistrate taking cognizance. Under sub-section (1) of section 343, it is provided that a magistrate to whom a complaint is made under section 340 or 341 shall, notwithstanding anything contained in chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report. Section 344 enacts a summary procedure for trial for giving false evidence where the court does not choose to proceed under section 340 of the CrPC. Under this section before the punishment is imposed, the offender has to be given a reasonable opportunity of showing cause why he should not be punished for such offence.The maximum punishment laid down is imprisonment upto three months or fine upto Rs.500/- or both. Section 345 lays down procedure in certain cases of contempt.

6.2.3. There is a general tendency on the part of Courts to avoid making complaints even against persons giving false depositions or launching false prosecutions. In our recent report on the Code of Civil Procedure, 1908, while referring to a Supreme Court decision, it was observed that no court can avoid taking action against persons who submit false affidavits in the courts or give false evidence.

In order to curb the tendency to give false evidence in judicial proceedings, it is essential that frequent recourse should be taken by courts to the aforesaid provisions so that persons making false depositions or pursuing false prosecutions are deterred from doing so. This object can be achieved if presiding officers of courts are not required to personally file the complaint before the Magistrates of first class.Many times presiding officers avoid taking recourse to the prescribed procedure as they wish to avoid the possibility of their being called as a witness in such proceedings.

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