The term “perjury” is not explicitly defined in either the Bhartiya Nyaya Sanhita, 2023 (BNS), or the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), nor was defined in Indian Penal Code (IPC), 1860 and Code of Criminal Procedure (CrPC), 1973. However, the Supreme Court, in the case of Kishorbhai Gandubhai Pethani vs. State of Gujarat (https://indiankanoon.org/doc/102910949/), provided a clear explanation of what perjury is and the same is produced herein below in verbatim:
“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.”
The Parliament, at the time of enacting the new legislations of BNS & BNSS had an option to elucidate the word ‘perjury’, but did not choose to define it, because they co-opted the definition given in Kishorbhai Gandubhai Pethani supra in practice.
The concept of perjury is wide, and owing to several circumstances that have prevailed over time, the law makers bifurcated this concept and specifically delineated various forms of this notion under several sections, starting from section 227 to 246 of Bhartiya Nyaya Sanhita, 2023 (BNS). It is pertinent to mention that the main sections that form the basis of the word “perjury”, and from which, numerous other branches have emerged, are stated below-
- Section 227 – Giving false evidence
- Section 228- Fabricating false evidence
- Section 229- Punishment for false evidence
The concept of perjury was established to protect the innocent person and to instill fear in the minds of those individuals who want to wriggle out of the judicial proceedings without facing any consequences of their ill acts. That after committing an offence, when the accused commits perjury, so that he can go scot-free, is in itself a grave crime to commit because the person who is carrying out perjury does not realize the repercussions of his misdoing which can lead to even severe punishment than what that person deserved for the crime he originally committed as now, the penalty of perjury will also be attracted. Moreover, through perjury the accused also dismantles the judicial proceedings by fabricating as well as furnishing false evidence in the court of law so that the matter doesn’t reach its lawful conclusion. Thus, the punishment for perjury, as stated in Section 229 of BNS becomes mandatory and necessary for the efficient adjudication of a dispute.
The punishment stipulated under section 229 is up to seven years of imprisonment and a fine if the false evidence is given or fabricated in a “judicial proceeding”. If false evidence is given or fabricated in “any other case”, the punishment can be up to three years of imprisonment and a fine.
It is to be noted further that, the procedure that is to be followed in perjury cases is outlined in Section 379 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS). If a court believes that an offense under section 215(1)(b) of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) has been made out then it may conduct an inquiry and, if necessary:
- Record a finding of the offense.
- File a written complaint to a Magistrate of the first class having jurisdiction; .
- Ensure the accused’s appearance, by directing him to deposit enough security or if the offence is non-bailable then the court can send the concerned accused to such Magistrate’s custody.
- Bind the accused to furnish evidence before such Magistrate.
It is vital to mention that, the complaints must be in proper format and duly signed by the presiding officer or an authorized officer of the court.
It is hereby noted that, due to abrogation of the old acts in criminal law, Section 195 of the Indian Penal Code has been replaced by Section 229 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), and Section 340 of the Criminal Procedure Code has been amended to Section 379 of the BNSS.
Conditions for intiating Proceedings under 379 of Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS).
The Hon’ble Supreme Court through its landmark judgement in the case titled James Kunjwal vs. State of Uttarakhand (2024) (https://digiscr.sci.gov.in/pdf_viewer?dir=YWRtaW4vanVkZ2VtZW50X2ZpbGUvanVkZ2VtZW50X3BkZi8yMDI0L3ZvbHVtZSA4L1BhcnQgSUkvMjAyNF84XzMzMi0zNDRfMTcyNTAxNzQ4MS5wZGY=) has laid down the guidelines to commence the prosecution under Section 379 of the BNSS, these guidelines are as follows:
a. Prima Facie Case for the Offense
The court must first be satisfied that there is enough evidence to suggest that an offense, such as false evidence or perjury, may have occurred. This means a preliminary case for investigation has been established based on the materials presented, and there is sufficient ground to believe that a deliberate falsehood has been committed.
b. Expedience in the Interest of Justice
The court must also determine that it is “expedient” to pursue the matter further in the interest of justice. This involves considering whether investigating the case is crucial to safeguard the legal process and the integrity of the judicial system, ensuring that false statements do not undermine the course of justice.
c. Deliberate Falsehood on a Matter of Substance
Proceedings should only be initiated if there is a deliberate falsehood on a matter of substance. The court must be satisfied that the false statement was made intentionally and on an issue that is significant to the case, not merely due to an innocent mistake or irrelevant inaccuracy.
d. Reasonable Foundation for the Charge
The court should be convinced that there is a reasonable foundation for the charge, supported by distinct and clear evidence. It is not enough for the court to rely on mere suspicion; there must be tangible evidence to justify the initiation of proceedings for perjury or false evidence.
e. Exceptional Circumstances for Initiating Proceedings
Proceedings should be initiated in exceptional circumstances, such as when a party has committed perjury to gain a beneficial order from the court. The court must determine that the false statement has had a direct impact on the judicial process, leading to an unjust advantage or outcome, thereby justifying the initiation of legal proceedings.
Merely a contradictory statement in a judicial proceeding alone is not enough to justify prosecution for perjury. It must be proven that the defendant intentionally made a false statement or fabricated evidence, and the court must decide whether initiating an inquiry is in the interest of justice based on the overall case context,stated in K.T.M.S. Mohd. v. Union of India (1992) (https://indiankanoon.org/doc/1059883/).
Also in Pritish v. State of Maharashtra (2002), (https://indiankanoon.org/doc/404944/) the Court ruled that the court is not bound to file a complaint under Section 340 of the CrPC merely upon finding prima facie evidence of an offense. It must be determined if initiating an inquiry is necessary for the interest of justice, and a preliminary inquiry is optional.In Iqbal Singh Marwah v. Meenakshi Marwah (2005), (https://digiscr.sci.gov.in/admin/judgement_file/judgement_pdf/2005/volume%202/Part%20I/2005_2_708-732_1702898094.pdf) the Court emphasized that prosecution under Section 340 of the CrPC should be initiated only if it is expedient in the interest of justice. The impact of the false evidence on the administration of justice, rather than the injury to an individual, should be the primary consideration in deciding whether to proceed with prosecution.
Is it mandatory to conduct a preliminary inquiry before filing a complaint under Section 229 of BNS 2023 ?
There are different legal precedents offering varying views on the necessity of a preliminary inquiry under Section 340 of the CrPC before filing a complaint under Section 195. The Supreme Court in State of Punjab vs. Jasbir Singh (2022) (https://indiankanoon.org/doc/19049514/) reaffirmed the principle that a preliminary inquiry under Section 340 CrPC is not mandatory before filing a complaint under Section 195 CrPC. This aligns with the ruling in Iqbal Singh Marwah vs. Meenakshi Marwah (2005), which emphasized that such an inquiry is discretionary and meant to determine whether proceeding is expedient in the interest of justice, rather than establishing guilt. This principle streamlines the process, negating the need for a hearing for the would-be accused.
This recent decision also clarifies that the procedural requirements under Section 340 CrPC are primarily to protect the administration of justice and are not bound by rigid formalities. This contrasts with the conflicting view in Sharad Pawar vs. Jagmohan Dalmiya (2010), (https://main.sci.gov.in/jonew/bosir/orderpdf/1077690.pdf) which mandated a preliminary inquiry and hearing. The reaffirmation of the Constitution Bench’s ruling ensures consistent application of the law, reducing legal ambiguities and enhancing judicial efficiency.
Conclusion
The Supreme Court has effectively clarified the procedural approach to handling perjury cases under Section 379 BNSS, ensuring that the legal process remains efficient and just. The rulings indicate that a preliminary inquiry is discretionary and not mandatory, emphasizing that the primary focus should be on whether pursuing the case is expedient in the interest of justice. This approach eliminates unnecessary procedural complexities and affirms that there is no obligation for a hearing for the would-be accused at this stage.
By resolving the conflicting views from previous cases, the Supreme Court has established a clear and consistent legal framework that prioritizes the administration of justice. This alignment with the principles laid out in the Constitution Bench ensures that the legal system can address perjury effectively, maintaining the integrity of judicial proceedings. Ultimately, these decisions contribute to a more streamlined and reliable judicial process, reducing ambiguities and enhancing the overall efficiency of the courts.
