Perjury

From Justice Definitions Project

What is perjury?

The intentional act of willfully asserting a matter of fact, opinion, belief, or knowledge, by a witness[1] in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be a substitute for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, to mislead the court, jury, or person holding the proceeding is defined as perjury.[2]

The Supreme Court in the case of Kishorbhai Gandubhai Pethani v. State of Gujarat[3] stated that perjury is an obstruction of justice and has to be seen as a cause of concern for the legal system. It strikes at the root of the system and compromises the accuracy of the findings recorded by the court. Hence, taking strict action against anyone committing perjury is vital for the functioning of the court system and serves the best interests of the general public.[4]

Official definition of perjury

The primary statute that defines perjury is the Indian Penal Code. While the term "perjury" itself may not be explicitly mentioned, the offence of perjury is encompassed and addressed under Section 191 to 193 of the Code. These sections deal with the act of giving false evidence, fabricating false evidence, and the punishment for such offences during judicial proceedings.

Section 191 of the Indian Penal Code defines the offence of giving false evidence. It states that if a person is legally obligated by an oath[5] or a specific provision of the law to tell the truth or make a declaration on a particular matter, and they intentionally provide a false statement that they either know to be false or do not believe to be true, they are considered to have given false evidence.

The section encompasses both oral and non-verbal statements. Furthermore, the section explains that a false statement regarding the belief of the person making the statement is also considered false evidence.[6]

Section 192 of the Code states that the any person who intentionally causes a situation to exist or creates a false entry in a book, record, electronic record, or document containing a false statement, with the intention that such false entry, or false statement be presented as evidence in a court proceeding, a proceeding before a public servant, or an arbitration, and that it may lead anyone involved in the proceeding to form an incorrect opinion on a crucial matter affecting the outcome of the proceeding, is said to have fabricated false evidence.[7]

The prosecution of perjury requires a careful and cautious approach. Perjury charges should be pursued only when there is a reasonable probability of conviction and when the false statements seem to be deliberate and conscious. It is essential that the false evidence or false affidavit in question is of material significance to the case at hand. The court must establish a prima facie case of deliberate falsehood and ensure that there is a reasonable foundation for the charge. Judicial deliberation is crucial, and the court should consider all relevant factors before ordering prosecution, including the plausibility of the accused's explanations. Furthermore, the length of time elapsed since the alleged perjury and the potential adverse impact on the accused, both mentally and financially, should also be taken into account. These principles serve as a safeguard against unwarranted or hasty prosecutions, ensuring that perjury charges are pursued in the interest of justice and not based on inconclusive or doubtful material.[8]

In the case of Fakir Chand v. Emperor,[9] the accused first made a false statement but immediately corrected himself when warned by the Magistrate. The court held that since the accused had not intentionally made the earlier false statement and promptly rectified it, he should not be convicted of perjury.

In 1847, the Indian Law Commissioners stated that it is possible that the first statement made by the witness is false due to an error or mistake, and is subsequently corrected by the party upon acquiring new information. However, if there is no allegation or explanation provided to negate the inference that the party deliberately made a false statement under oath to deceive the court on a crucial matter, the law should not prevent the person from escaping the punishment they deserve.[10]

Punishment

According to Section 193 of the Indian Penal Code (S.227 of the BNSS), if a person intentionally gives false evidence in any judicial proceeding or fabricates false evidence with the intention of using it at any stage of a judicial proceeding, they can be sentenced to imprisonment for a term that may extend up to seven years. Additionally, they may be liable to pay a fine. If a person intentionally gives or fabricates false evidence in any other case, not involving a judicial proceeding, they can be sentenced to imprisonment for a term that may extend up to three years. They may also be liable to pay a fine.

The section includes two explanations to provide further clarity stating that a trial conducted before a Court-martial is considered a judicial proceeding and that an investigation directed by law, which serves as a preliminary step to a proceeding before a Court of Justice, is deemed a stage of a judicial proceeding, even if the investigation does not occur before a Court of Justice itself.[11]

Additionally, in more serious cases, the offences of giving or fabricating false evidence are considered aggravated when they are committed with the intention of securing the conviction of a capital offence, as stated in Section 194 (S.228 of BNSS) of the Indian Penal Code and if the intent is to secure the conviction for an offence punishable with imprisonment for life, similar aggravated offences are committed.[12]

Remedy

Section 195, Code of Criminal Procedure

A First Information Report (FIR) cannot be directly filed against a person for the offence of perjury. Section 195 of the Code of Criminal Procedure (CrPC) (S.215 of the BNSS) imposes certain limitations on the initiation of proceedings for perjury. It states that no court can take cognizance of offences punishable under Sections 191, 192, and 193 of the IPC(S.225, 226 and 227 of the BNS respectively) except on a complaint made by the court or by a public servant concerned, or upon the direction of a court.

Therefore, in cases of perjury, the court itself needs to take cognizance and initiate the proceedings based on a complaint made by the court or a public servant concerned or upon the direction of the court.[13]

In R.S Sujatha v. State Of Karnataka And Others,[14] it was stated that the inquiry/contempt proceedings with respect to perjury should be initiated by the court only 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 a 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.

Section 340, Code of Criminal Procedure

Section 340 of the CrPC (S.379(1) of BNSS) also deals with the procedure for prosecuting a person for giving false evidence or committing perjury. It empowers the court to initiate proceedings against the person who, in its opinion, has given false evidence or committed perjury. The court may take cognizance of the offence on its own or upon a complaint made by any party to the proceeding or by any other person.

Section c(i) of the Contempt of Courts Act

In relation to perjury, contempt proceedings under section 2(c)(i) of the Contempt of Courts Act, 1971 can be initiated against a person who commits perjury or provides false evidence during judicial proceedings.[15]

Appearance in official databases

Perjury convictions and related court records are a part of official databases like the National Crime Records Bureau (NCRB) maintained by the judicial system. These databases serve as repositories for legal records, including criminal convictions. However, it is important to note that there is very limited data specifically dealing with the offence of perjury as there are no exclusive case types which deal with perjury and as mentioned earlier even the contempt proceedings deal with perjury.

International experiences

United Kingdom

Unlike India, the United Kingdom has a separate act which deals with perjury. According to the Perjury Act, 1911, perjury is a statutory offence. It is created by section 1(1) of the Perjury Act 1911. The Perjury Act encompasses various provisions, including the offence of perjury itself, false statements made under different circumstances, such as unsworn statements and false declarations regarding marriages, births, and deaths. It also addresses false statutory declarations, fraudulent statements to obtain lisences, and the involvement of accomplices. The Act includes provisions on venue, indictment format, corroboration requirements, and interpretation.[16] The offence of perjury applies to all individuals, regardless of their occupation or status. Public servants are subject to the same legal obligations and consequences for committing perjury as any other individual. Section 1 of the 1911 Act states that a statement must be material, and under subsection (6), the determination of materiality is a question of law to be decided by the court during the trial. The concept of materiality is also relevant in offences under sections 2(1) and 5. The element of materiality is considered important in the context of false statements made in judicial proceedings based on old authority and its significance in this context. Similar to the Indian law, intention is also an important element in the offense of perjury in the UK law. According to the Perjury Act 1911 in the UK, it is not a defense to a charge of perjury that the statement in question was actually true, even if the accused did not believe it to be true. The Act does not provide for a defense based on the truthfulness of the statement. The purpose of perjury as an offence is to address the act of intentionally lying in a way that can mislead the court and obstruct the course of justice. Therefore, even if the court is not actually misled by a false statement, it does not absolve the accused from the charge of perjury.[17]

United States

The United States also has separate legal statutes which criminalize the act of perjury. Congress has enacted three such statutes: 18 U.S.C. §§ 1621, the general statute; 1622, the subornation of perjury; and 1623, perjury before a grand jury.[18] § 1621 is the widest of all the three statutes and applies to all material statements provided under oath to “a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered.”[19] Courts have construed the clause "competent tribunal, officer, or person"" to allow for prosecution under § 1621 in a wide range of situations, so long as the entity is acting within its legal authority.[20] Unlike the laws in India, in the US, subornation of perjury is also an offence under § 1622 where to prove the same, the government is required to prove three elements: (i) that the defendant persuaded a witness to perjure himself,[21] (ii) the witness committed perjury,[22] and (iii) the defendant knew the witness's testimony would be false.[23]

§ 1623 applies to statements provided under oath in any proceeding before or related to a U.S. court or grand jury. In fact, Section 1623 applies not only to testimony provided within the United States but also to testimony given outside the country. This provision expands the scope of perjury prosecutions and ensures that false statements made under oath in various proceedings can be subject to legal consequences. Unlike the law in the  U.K., one of the requirements for the offence of perjury is that the statement must be false even after intent has been proved[24] so the defense of a true statement usually works. However, courts may narrowly interpret the scope of what constitutes a literally true answer and apply this exception only where a defendant's allegedly false statements were undisputedly, literally true.[25]

Australia

Perjury is an offence in Australia as well. Similar to other jurisdictions, Australian states too have laws which list some elements of perjury. The accused should make a false statement under oath or affirmation in or in connection with any judicial proceeding, the statement should concern any matter which is material to the proceeding and the accused should make the statement knowing it to be false or not believing it to be true. However, the penalty is different for different states. According to the law in Western Australia, it is irrelevant whether the person who gives testimony is a competent witness or not or whether the testimony is admissible in the proceedings or not. Even Australia has criminalized subornation of perjury.[26]

Rome Statute

Article 70 of the Rome Statute which covers offences against the administration of justice also lists perjury as an offence under Article 70 Part 1 and provides the Court with the jurisdiction over it. The statute too lays down that the act should be committed intentionally and also criminalizes subornation of perjury.[27]

Challenges and Way Forward

One of the challenges faced by the courts might relate to the definition and application of the mental element in perjury offences. As stated above, in order to establish a perjury offence, it is necessary to prove that the false statement was made intentionally. However, there are instances where a statement is made intentionally but not intended to be taken as true by the court. This presents a dilemma as to whether such statements should be capable of prosecution for perjury.

While some statements are made with the intention to be taken as true, individuals may be negligent in verifying their facts.

Another challenge faced is in cases where witnesses turn hostile. There is still inconsistency in the courts’ decision regarding the punishment of a witness turning hostile. Hostile witnesses rarely get accused of perjury. This is because there are a number of factors which need to be considered while prosecuting a witness of perjury. Although, there is no doubt that even when a witness turns hostile, all the requirements of perjury are fulfilled, the reason which led to the hostility has to be taken into consideration. There are times, especially when a high profile case is going on, witnesses are often threatened to change their testimonies either to favor the accused or to save him. There is no doubt that a person, when given a choice of losing their life or spending some time in imprisonment, would choose the latter. The courts would not serve any purpose by punishing those witnesses. Therefore, it becomes imperative that the witnesses are protected from these threats. Hence, the implementation of the witness protection laws[28] is required and poses a challenge.[29]

To achieve uniformity in the mental element across all false statement offences, it is essential to eliminate the mental element of recklessness, which is used as an alternative to knowledge of falsity in certain statutory offences. The proposed offences should instead focus on false statements known to be false or not believed to be true, made with the intention that they be taken as true.

It is essential to define offences in a way that clearly indicates the degree of fault required for establishing guilt when the proposed mental element is absent. By addressing these challenges and refining the mental element in perjury offences, Indian courts can enhance the effectiveness of legal proceedings and ensure justice is served.

  1. ↑ Witness#cite note-17
  2. ↑ Black’s Law Dictionary, 2nd edition
  3. ↑ (2014) 13 SCC 539
  4. ↑ https://www.scconline.com/blog/post/2022/07/14/perjury-fine-prints-about-the-process/
  5. ↑ Section 8 of The Oaths Act, 1969 states that every person giving evidence on any subject before a court or person hereby authorized to administer oaths and affirmations shall be bound to state the truth on such a subject.
  6. ↑ Section 191, Indian Penal Code
  7. ↑ Section 192, Indian Penal Code
  8. ↑ Chajoo Ram v. Radhey Shyam and Anr., (1971) SCC 1 774
  9. ↑ AIR 1925 Lah 646(1)(G)
  10. ↑ In the matter of Palani Palagan, (26 Mad 55 (H))
  11. ↑ Section 193, Indian Penal Code
  12. ↑ https://www.scconline.com/blog/post/2022/07/14/perjury-fine-prints-about-the-process/
  13. ↑ Gurinder Singh & Another Petitioners v. State, 1996 DLT 63 104
  14. ↑ 2011 SCC 5 689
  15. ↑ Muthu Karuppan, Commissioner of Police, Chennai Vs. Parithi Ilamvazhuthi and another, (2011) 5 SCC 496
  16. ↑ https://www.legislation.gov.uk/ukpga/Geo5/1-2/6/contents
  17. ↑ https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/No.033-Criminal-Law-Perjury-and-Kindred-Offences.pdf
  18. ↑ Scott Mah, Teressa Hamsher, Jordan Hughes & Anne Moody, Perjury, 57 AM. CRIM. L. REV. 1115 (2020).
  19. ↑ 18 U.S.C. § 1621(1); see infra Section II.B and accompanying notes (discussing contexts where § 1621 applies as restricted by the intent element).
  20. ↑ For circumstances in which the forum was held to be a competent tribunal under § 1621, see infra Section II.B (listing various contexts to which courts have applied § 1621). For circumstances in which the forum was held to be incompetent under § 1621, see United States v. Tamura, 694 F.2d 591, 602 (9th Cir. 1982) (finding filing of false tax return is not perjury under § 1621 because it does not require swearing an oath before competent tribunal); United States v. Cross, 170 F. Supp. 303, 309-10 (D.D.C. 1959) (holding congressional subcommittee an incompetent tribunal when purpose of tribunal was to put witness in position to commit perjury).
  21. ↑ See United States v. Ethridge, 519 App'x 828, 830 (4th Cir. 2013) (explaining that subornation involves instigating another to commit perjury (citing United States v. Heater, 63 F.3d 311, 320 (4th Cir. 1995))). But see United States v. Pabey, 664 F.3d 1084, 1095-96 (7th Cir. 2011) (finding even if defendant does not ask or pressure third party to commit perjury, defendant's reliance on testimony he knows is false for primary defence constitutes subornation of perjury).
  22. ↑ See United States v. Hairston, 46 F.3d 361, 376 (4th Cir. 1995) (finding perjury must have actually been committed to constitute subornation of perjury).
  23. ↑ See United States v. Robinson-Gordon, 418 F. App'x 173, 177 (4th Cir. 2011) (explaining that there can be no subornation if there is no "actual knowledge" of the perjury); Perkins v. Russo, 586 F.3d 115, 120 (1st Cir. 2009) (stating that "[s]ubornation requires 'the knowing use of perjured testimony"' (quoting United States v. Agurs, 427 U.S. 97, 103 (1976))); United States v. Derrick, 163 F.3d 799, 828 (4th Cir. 1998) (holding prosecutors guilty of suborned perjury only if they knew their witness would testify falsely). 
  24. ↑ See Naegele, 341 B.R. at 359; see also United States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013) (stating a perjury conviction cannot be based on intent to deceive if statements are literally true); United States v. Porter, 994 F.2d 470, 474 (8th Cir. 1993) ("When a defendant's testimony is vague, unresponsive or evasive, there can be no basis for a perjury conviction when the answers given are literally true.").
  25. ↑ See United States v. Sarwari, 669 F.3d 401, 406 (4th Cir. 2012) (discussing generally the application of the literal truth defense); United States v. Strohm, 671 F.3d 1173, 1183-84 (10th Cir. 2011) (deeming the literal truth defense inapplicable where answers given by defendant were responsive and not indisputably true).
  26. ↑ https://www.lexology.com/library/detail.aspx?g=59ed047a-3f1d-4d4d-bb85-20870047e6c9
  27. ↑ Article 70, Rome Statute of the International Criminal Court
  28. ↑ Witness#cite note-17
  29. ↑ https://www.thequint.com/explainers/india-problem-of-hostile-witnesses-perjury#read-more
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