Is perjury a crime in India?

If yes, how many people are prosecuted for perjury, especially women? Why isn't perjury considered as a serious crime in India? How many people were prosecuted for perjury? Why do a lot of lawyers in India seemingly encourage their clients to commit perjury in court proceedings? How seriously do lawyers take perjury? There are so many reasons why you do not know about this in detail with reality. Maybe you could not get a right source to know about this, or since it was difficult for you to voice out this issue. This article on Perjury Law is for you, for those who think perjury law should be punishable in India.

The Origin of Perjury Law:

The word 'perjury' is derived from the Latin word perjurium. 'Perjurium' was referred to as a sin but not as a public wrong. Similarly, Perjury is "an act or an instance of a person's deliberately making materially false or misleading statements while under oath", though not defined under Indian statutes is a crime referred to as 'False evidence'. The offence of False evidence is dealt in Chapter XIV of BNS (Bharatiya Nyaya Sanhita, 2023) which was earlier considered under Chapter XI of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC').

The said Chapter is titled 'False Evidence and Offences Against Public Justice'. This article aims to explore the law and procedure the offence of Perjury in India and the history of perjury in India. The need of the hour is to consolidate and have robust law in force pertaining to perjury.[1] The Hon'ble Supreme Court in the case of Kishorbhai Gandubhai Pethani v. State of Gujarat 1 has succinctly elaborated the meaning of perjury in para 9, which reads as under:

9. Perjury is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, Amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large. [2]

Especially when, in India parties do not hesitate before lying before court of law. Perjury is, if not the sole reason, one of the major reasons for all the injustice, delays, corruption, fraud, and increasing crimes. Developed nations in the world take perjury very seriously with strict implementation and severe punishments. Through this article expressing that perjury should be counted as the crime in India under the law with its severe punishment.

Perjury in British India:

In upholding the legitimacy of the judicial system in India, Perjury has a specific role to play. British concepts of perjury prevalence in India were mockingly used as both a colonial excuse for destabilising and sustaining trust in the rule of law. British perjury concepts served to distract criticism from the colonial state's practical workings. Native perjury explains why it appears that the rule of law does nothing to impede progress. Perjury was a satisfactory administrative problem and, like other problems, received little scientific attention at this level. When the British Government relied on native informants, suspicion of deception was nearly certain.

The new regulation diminished the power of the Indian legal profession which was then in its infancy, having begun to be regulated by law only in 1793. This innovation also placed the problem of perjury in India on a substantially different footing than in England. In England, the absence of public prosecution system until the late 19th century referred that the responsibility for detecting and prosecuting perjury was entirely based on the opposing party's counsel. In England, perjury was detected by counsel of the other side on a cross-examination. In India, by contrast, both perjury and prosecution were detected by the judge.

Offence of Perjury in India

Section 227 of BNS, 20232 of Chapter XIV (Section 191 of Chapter XI of IPC) deals with the offence of giving False Evidence which is when a person who is under oath or express provisions of law required to state the truth, makes a false statement or any statement that the said person does not believe to be true is known as giving false evidence.

The punishment for giving such false evidence under section 229 of BNS,20233 shall be punished with imprisonment of either description for a term which may extend to 7 (seven) years, and shall also be liable to fine which may extend to five thousand rupees. The said offence is non-cognizable, meaning thereby that the said offence can neither be investigated upon nor an FIR registered by the police without express permission or direction from the court.

The procedure for registering and investigating the offence of Perjury is enumerated in section 3794 of BNSS (Bharatiya Nagarik Suraksha Sanhita,2023) under Procedure in cases mentioned in section 2155 of BNSS (Bharatiya Nagarik Suraksha Sanhita,2023) which was earlier under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) and dealt in detail by the Hon'ble Supreme Court of India in case title Pritish Vs. State of Maharashtra and Ors 6.. At the first instance any party or person may move an Application under Section 340 of the Code of Criminal Procedure, 1973 before the judicial forum where such perjury has been committed.

The said judicial forum then must conduct a preliminary enquiry onto the prima facie existence of perjury without serving upon or calling the alleged accused. The accused has no legal right to be heard at this stage. The apex court has in the case titled Pritish (Supra) held that the Application under Section 340 of CrPC (section 379 of BNSS) is comparable to an Application under Section 154 of CrPC (Section 173 of BNSS) before the police for registration of an FIR wherein the accused until an FIR is registered has no legal right to be heard.[3]

The concerned judicial forum must on the documents before it decide the existence of perjury. In case the judicial forum decides the existence of perjury, the judicial forum must then make a complaint in writing under section 379 of BNSS (Section 340 of CrPC) to the concerned Magistrate of first class. The said Magistrate shall receive the said Complaint under Section 343 of CrPC (section 382 of BNSS ). The Magistrate shall examine the complaint, hear the accused and then make its judicial mind as to if the allegations are groundless or with ground. The Magistrate may either discharge or charge the accused with the offence of perjury based upon the complaint, documents and its exam

Future of Offence of Perjury in India

The offence of Perjury is a commonplace in the Indian judicial system. Even though most pleading before a judicial forum mandates an affidavit in support of such a pleading, the affidavits are taken lightly by the litigant and the judicial system. The Indian Judiciary has over the years voices its concern to police the offence of perjury citing the tremendous volume of pendency and the inability of the legal system to handle the said offence. The perjury must be considererd under the strict offence in India by making it a mandatory law for all the citizens of India. The penalities and punishment should be increased to establish the perjury as crime under law.

Perjury under BNSS:

Section 215 of BNSS (Bharatiya Nagarik Suraksha Sanhita,2023) Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

1. No Court shall take cognizance:
   1. 
      
      1. of any offence punishable under sections 206 to 223 (both inclusive but excluding section 209) of the Bharatiya Nyaya Sanhita, 2023; or
      2. of any abetment of, or attempt to commit, such offence; or
      3. of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate or of some other public servant who is authorised by the concerned public servant so to do;
          
   2. 
      
      1. of any offence punishable under any of the following sections of the Bharatiya Nyaya Sanhita, 2023, namely, sections 229 to 233 (both inclusive), 236, 237, 242 to 248 (both inclusive) and 267, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; or
      2. of any offence described in sub-section (1) of section 336, or punishable under sub-section (2) of section 340 or section 342 of the said Sanhita, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court; or
      3. of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.
          
2. Where a complaint has been made by a public servant or by some other public servant who has been authorised to do so by him under clause (a) of sub-section (1), any authority to which he is administratively subordinate or who has authorised such public servant, may, order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
    
3. In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central or State Act if declared by that Act to be a Court for the purposes of this section.
    
4. For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:
   • Provided that:
     1. where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
     2. where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

BNSS (Bharatiya Nagarik Suraksha Sanhita,2023) Section 379 - Procedure in cases mentioned in section 215:
379.

1. When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 215, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,—
   1. record a finding to that effect;
   2. make a complaint thereof in writing;
   3. send it to a Magistrate of the first class having jurisdiction;
   4. 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
   5. bind over any person to appear and give evidence before such Magistrate.
2. The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 215.
3. A complaint made under this section shall be signed,—
   • where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
   • 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.
4. In this section, "Court" has the same meaning as in section 215.

Need for Expanding the scope of perjury and related offenses

The proper Act should be formed to make the perjury as serious crime and the Act shall include several key changes aimed at improving the justice system compared to the existing Bharatiya Nyaya Sanhita (BNS) and Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

• Broadened Definition of Perjury is needed: The definition shall include statements "likely to mislead" and encompass indirect falsehoods, making it easier to prosecute.
• Right to Remain Silent: Accused must not be forced to commit further crimes of perjury in interrogation or by themselves in self-defence.
• Inclusion of Non-Judicial Settings: Perjury in non-judicial settings, such as legislative and executive submissions, should be punishable.
• Direct Cognizance of Perjury: Courts should take direct cognizance of perjury, simplify the process and executive submissions.
• Non-bailable and Strictly Non-compoundable offence: Perjury should be ranked as a more serious crime as it overpowers the entire justice delivery system.
• Private Prosecution: Charges can be directly framed when sufficient prima-facie evidence is available for such private prosecution should be initiated.

• Fast-Track Prosecution and Litigation Management:
• Fast-Track Courts: Special courts should be established for expediting trials of perjury cases, similar to those for cheque bounce cases.
• Protection of Participants: Enhanced measures should be taken for the protection of witnesses and other participants in judicial proceedings.

Make perjury a much stricter offence:

The perjury laws in all developed nations are quite developed, which provide severe punishment towards false and misleading pleadings and statements in court of law. Therefore, the laws relating to perjury in India have to be amended and modified being the need of the hour, as it serves multiple facets. The procedure to try offences of perjury should be changed and Punishment should be enhanced. Stricter and harsher punishments should be enacted and provided for the amendment in laws relating to perjury or enact the same under new laws.

While doing so it will also make the offence non-bailable and cognizable, thereby causing fear in the minds of the parties, who presently commit offences under perjury, without any second thoughts. The law of the land will be held to be supreme and occasion of the parties to adopt false and fabricating documents in legal proceeding will be reduced.

Enhance Penalties and Deterrence:

• Severe Penalties: Significant penalties for perjury and related offences should be enhanced with deterrence including imprisonment and fines. Perjury should be made a non-bailable and non-compoundable offence.
• Additional Pecuniary Penalties: Enhance financial penalties for serious cases, determined by a regulatory committee of High Court judges.
• Reversal or Modification of Judgments: Allow for the modification of judgments influenced by perjury.
• Civil Suits for Damages: Victims of perjury can file separate civil lawsuits for damages incurred.
• Restitution and Punitive Damages: Courts may order restitution and punitive damages to deter future misconduct.
• Forfeiture of Right to Submit Further Evidence: Once perjury is established, the unethical party shall not be allowed or trusted to lead evidence.

Necessity of inquiry:

Section 340 CrPC (Section 379 of BNSS) provides for an inquiry to be made before the complaint thereafter is filed by the court. The court will normally hold such inquiry but the section nowhere says that it is of a mandatory character. If the court will otherwise able to form an opinion about the necessity, it can certainly dispense with the inquiry (ref : Hon'ble Supreme Court in the case of Amarsang Nathaji As Himself vs Hardik Harshadbhai Patel dated 23.11.2016)7

Perjury must appear to be intentional and deliberate; mere inaccuracy or a false statement won't result in a prosecution under section 379 of BNSS

The Hon'ble Supreme Court in the case of Chajoo Ram v. Radhey Shyam and Another (1971)8 observed that "the prosecution for perjury should be sanctioned by the quotes only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeat it's very purpose. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial.

There must be prime facie case of deliberate falsehood on a matter of substance and the court should be satisfied and there is a reasonable foundation for the charge. In the present case, we do not thing the material brought to our notice was sufficiently adequate to justify the conclusions that it is expedient in the interest of justice to file a complaint. The approach of the high court seems somewhat mechanical and superficial. It does not reflect the requisite judicial deliberation."

Likewise, in the case of our Aarish Asgar Qureshi v. Fareed Ahmed Qureshi (2019)9, aforesaid judgments were referred to and relied upon with approval in R.S Sujatha v. State of Karnataka and Others10 were in after referring to afforsaid judgments concluded as :

Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in exceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so the court has also to determine as on facts, whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.

Therefore, from a reading of these judgments that there should be something deliberate- a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise.

The Constitution be[5]nch of Hon'ble Supreme Court, in the case of Iqbal Singh Marwah v. Meenakshi Marwah 11 clarified that the bar of section 195 crpc (Sec.215 of BNSS) would be attracted only when the offences enumerated in the said provision have been committed with the respect to a document after it had been produced or given in evidence in proceeding in any court. It is therefore clear that if an offence of Forgery has already been committed in respect of a document and there after the said document is produced before the court, section 195 of CrPC (Sec.215 of BNSS) would not bar an independent prosecution and as such, there will be no need to consider the matter under section 340 CrPC (Sec.379 of BNSS).

Conclusion:
Perjury is serious crime in nature and it is an obstruction of justice. Deliberately making false statements which are material to the case, and that too under oath, Amounts to crime of perjury. Thus, perjury has always to be seen as a cause of concern for the judicial system. It strikes at the root of the system itself and disturbs the accuracy of the findings recorded by the court. Therefore, any person found guilty of causing perjury, has to be dealt with seriously as it is necessary for the working of the court as well as for the benefit of the public at large. Perjury is serious crime in nature and it should be restricted by implementing separate harsh and stricter law for perjury.

• Allowing perjury filing may lead to doubling of the cases in the already overburdened judicial infrastructure. Support this:
• If people lie, the case becomes harder to prove and complicated. This makes the case go on forever and actually ends up clogging the system.
• No amount of increase in judicial officers can fix this.
• There is little intelligence in building more lanes on highways if the interaction itself is always choked.
• On the contrary, fear of greater offence of perjury will eliminate the default defense of lying in courts in India to quick settlement is about 80%-90% of cases internationally even before the case starts.
• Secondly, it is much faster to prove a single fact and show evidence than actually litigating on the entire set of facts and issues for the case.
   
• Truth is a thin line. Prosecuting "likely to mislead" is a very high bar, so such lies can be proven as:
• Falsity is when you even merely try to mislead, despite knowing that the actual facts are opposite. The misleading can be even by abstaining from telling the truth when you're supposed to.
• Facts are the basis to decide any case, and especially in the electronic age, it's much easier to discover. People have a right to remain silent and risk being held liable for collusion that might be a smaller crime but not actually ever be allowed to lie or even mislead the court at any cost.
• If a statement made is even likely to mislead, then it is the responsibility of the person making the statement to ensure that it does not mislead the court in line with international law. Like all other crimes, perjury is only prosecuted when there is beyond reasonable doubt that the individual was not "entirely honest".
   
• An approval is important to prevent frivolous filing of perjury cases:
• In any perjury case, the magistrate will only issue notice once there is a prima facie case made out. It does not need a higher standard of admissibility than other crimes.
   
• It would not affect the earnings of the legal profession:
• The suggested idea of adding perjury as a crime in Indian law or making a separate law for perjury will also allow tort compensation and pecuniary penalties to make the honorable profession far more rewarding and satisfying.
• International lawyers earn far more than the average lawyer in India, and it is the most wealthy and respected profession.
• Indian lawyers are not compensated enough because the system does not deliver any economic value to the country and largely plays a destructive role. With strong deterrence and a functional justice delivery system, the field of corporate law and compliance expands dramatically.
   
• Why would lawyers take any responsibility for perjury?
• In order to enable tort compensation, fee shifting, and pecuniary penalties like other countries to make the Legal Profession both desirable and rewarding.
• It is first important to make the Legal Provision honorable and far more trustworthy at scale. If this is considered law, it will envision providing clear-cut safe-harbor to lawyers for any malpractice, and automated course-correction before they are ever held accountable.

References:

1. (2014) 13 SCC 539, 542
2. (2014) 13 SCC 539, 542
3. Giving false evidence
4. Procedure in cases mentioned in section 215
5. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

End Notes:

1. (2002) 1 SCC 253
2. AIR 2016 SC 5384
3. 1971 AIR 1367 (1971 SCR 172) (1971 SCC (1) 774)
4. SLP (Crl.) No. 2632/2018
5. (2011) 5 SCC 689
6. (2005) 4 SCC 370

Written By: Anchal Jha, 4th year law student - Asian Law College, Noida