Indian Kanoon - Search engine for Indian Law

14. The next point to be noticed is that Section 191 of the Indian Penal Code defines the offence of giving false evidence. Section 193 provides for the punishment. It does not say that there are two kinds of perjury, but that if perjury is committed in the stage of a judicial proceeding it may be punished more severely than if committed in any other case. The offence is perjury wherever it may be committed.

15. In illustration (b) to Section 236, Criminal Procedure Code, the common relation is the inquiry as to the committal of a particular offence by one or more individuals and that enables the statements made on two different occasions to be considered as a series of acts. But the Police investigation under Chapter XIV has also a common relation though it is a wider one, viz., the inquiry into the committal of a particular offence. Therefore a statement at the Police investigation under Section 164 and a statement after judicial proceedings have commenced form a series of acts within the meaning of Section 236. If, on the other hand, the common relation can only be the inquiry as to whether one or more particular individuals committed a particular offence, then they cannot form a series of acts. But there is no reason why the wider relation, if it exists, should not be taken into account. To hold otherwise would have this disastrous effect, that witnesses might make the most incriminating statements under Section 164 resulting in persons being charged under the Indian Penal Code, with only the bare chance of such witnesses being held guilty of perjury, if they resiled from their statements at the trial. For nothing is more difficult to prove than the fact that a witness has made a statement which ho knew or believed to be false or did not believe to be true. It is only when he makes contradictory statements that a real chance of conviction arises. I think unnecessary confusion has been caused by the phraseology of Section 191 of the Indian Penal Code. The act which constitutes the offence is the making of a false statement on oath on an occasion when by the law the person statement is bound to tell the truth. If that act had been called ' perjury', a term which every one understands, there would have been no difficulty. But to call it ' giving false evidence' involves the use of a word which itself has several meanings. Clearly ' evidence' is not used in its restricted meaning of evidence which is given or can be used in the course of judicial proceedings, but in its widest sense including any formal enunciation of facts made for the purpose of establishing a particular conclusion. Thus a creditor who makes a false affidavit of claim against an insolvent's estate or an insolvent who makes a false schedule, gives false evidence. And if either of them happened to make contradictory statements before the Court in the course of proceedings under the Presidency Towns Insolvency Act, I do not see why they should not be convicted under Section 193 without the prosecution having to prove which of the statements was false : the common relation being the particular insolvency in which the statements were made. In my opinion, therefore, there is a common relation between the statement made before the Magistrate under Section 164 and the statement before the Tribunal so that they form a series of acts. No doubt this opinion is in conflict with the Full Bench decision in Queen-Empress v. Mugapa bin Ningapa (1893) I.L.R. 18. Bom. 377. F.B. But with all due respect to the learned Judges who tried that case the value of their considered opinion is deprived of much of its value by the fact that no reasons are given, and the contrary decision of this Court in Queen-Empress v. Ismail valad Fataru (1886) I.L.R. 11 Bom. 659 was not even referred to. It may be that Section 236 was considered, but, in my opinion, the real crux is whether the inquiry into the committal of a particular offence without dealing with the question whether a particular individual has committed it can constitute the common relation between the two statements and it is impossible to say whether their Lordships considered the question before them from that point of view.

Shah, J.

16. I agree with the judgment of my brother Pratt as regards questions Nos. 1, 2, 4 and 5 referred to the Full Bench. "I would answer these questions in the same sense, generally for the reasons given in that judgment.

17. As regards question No. 3, I regret that I am unable to accept the conclusion reached in that judgment.

18. I would answer that question in the negative.

19. I have carefully considered the arguments and the statutory provisions bearing on this question, as also the various decisions cited before us. The provisions of Section 236, Criminal Procedure Code, are of an enabling and not obligatory nature, and it is open to the Courts, on a fair interpretation of the section, to hold that a statement, which is not evidence in a stage of a judicial proceeding ought not to be linked with a statement which is evidence in a judicial proceeding or at a stage of a judicial proceeding so as to form the basis of an alternative charge. In determining whether any two contradictory statements can form the basis of an alternative charge, the Court must have regard to the nature of the statements. A statement recorded by a Magistrate under Section 164, Criminal Procedure Code, in the course of an investigation under Chapter XIV before the inquiry or trial has commenced, generally speaking, cannot be evidence at the trial: while a statement recorded before a Committing Magistrate in the course of the inquiry can be evidence at the trial. The statement recorded under Section 164 is one which a witness is under no legal obligation to make, though if he elects to make it he is bound to state the truth, in view of the provisions of the Indian Oaths Act. The scheme of the Code of Criminal Procedure makes a clear distinction between the stage of Police investigation and that of judicial proceedings by way of inquiry or trial. Though the obligation to state the truth is common to statements recorded under Section 164, as well as those made at the inquiry or trial, there is, in my opinion, a clear distinction between these two classes of statements. There is also a difference in the circumstances and surroundings under which the two sets of statements are recorded. This may be taken to be recognised by the Legislature, as the statements recorded under Section 164 are not permitted to be treated as evidence at the trial under the Code of Criminal Procedure or the Indian Evidence Act.

Setalvad, J.

26. I agree in the answers given in the judgment of Pratt J. to the questions referred to the Full Bench. As regards question No. 3, I fully concur in the reasons given in the judgment of the learned Chief Justice. The real question is, whether a statement made by a witness on oath under Section 164 of the Criminal Procedure Code during the course of investigation under Chapter XIV, and a statement made by the same witness at the trial constitute a series of acts' within the meaning of Section 236 of the Criminal Procedure Code, so that an alternative charge can under that section be framed in respect of such statements. I have no doubt that the do constitute a 'series of acts'. On information being given of an alleged offence, an investigation takes place under Chapter XIV of the Criminal Procedure Code; following on such investigation, the inquiry before the Committing Magistrate takes place and lastly comes the Sessions trial. There is a common relation between all acts done in the course of these three stages and statements made by the same witness at one or more of these stages constitute 'a series of acts'. It was contended that only offences of identical nature can be the subject of an alternative charge. There is no such restriction to be found in Section 236 of the Criminal Procedure Code. But assuming there is such a restriction, the offences which form in this case the subject of the alternative charge are, in my opinion, identical. The charge is that the accused in this case either gave false evidence when he made his statement under Section 164 or he gave false evidence in his statement before the Tribunal. Giving false evidence before the Tribunal being in a stage of a judicial proceeding falls within the first part of Section 193 of the Indian Penal Code; and giving false evidence in the course of a statement under Section 164 of the Criminal Procedure Code falls within the second part of Section 193 of the Indian Penal Code. But in either case, the offence is the one defined in Section 191 of the Indian Penal Code, viz., " giving false evidence."

37. It seems to me the question whether the Magistrate recording a statement under Section 164, Criminal Procedure Code, is a ' Court' or not is now irrelevant, considering the Full Bench in this case has held that these two contradictory statements can form the subject of a charge of giving false evidence. If he is not a Court no sanction would be required. But it has been held by the Madras High Court that a Magistrate recording a statement on oath under Section 164, Criminal Procedure Code, was a Court (see Queen-Empress v. Alagu Kone (1892) I.L.R. 16 Mad. 421 and that decision was followed in Suppa Tevan v. Emperor (1905) I.L.R. 29 Mad. 89. It seems unfortunate that although the words 'evidence', 'judicial proceedings', 'Court', "Court of Justice' are used in the Indian Penal Code, Criminal Procedure Code, the Indian Evidence Act and other Acts, there is no general definition of these terms applicable to any Act in which they appear. But 'Court' is defined in the Indian Evidence Act, Section 3, as including " all Judges and Magistrates, and all persons, except arbitrators, legally authorised to take evidence"; and under Section 164, Criminal Procedure Code, a Magistrate is bound to record the statements made to him in such of the manners thereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. If there were anything at all in the point, I should say that there was considerable justification for the decision of the Madras High Court that the Magistrate recording a statement under Section 164, Criminal Procedure Code, was a 'Court'. Cut it seems to me the point is immaterial because under Section 191, Indian Penal Code, the offence of giving false evidence is committed by making a false statement on oath when a person making a statement is legally bound by an oath or by an express provision of law to state the truth. When the law provides, therefore, for any case in which a person can be bound by an oath to speak the truth, and such a person makes a statement which is false, and which he either knows or believes to be false or does not believe to be true, then he is said to give false evidence, and there is no necessity that such a statement should be made in or before a Court, whatever the definition of 'Court' maybe. He is liable to be punished under Section 193, Indian Penal Code, which provides however that a more severe punishment can be inflicted if the offence is committed at any stage of a judicial proceeding than if it is committed in any other case. Therefore there is no reason to interfere with the conviction in this case. The original sentence of two years passed by the City First Class Magistrate was reduced by the Sessions Judge to one year's rigorous imprisonment, and, therefore, that is well within the period of imprisonment prescribed by Section 193, Indian Penal Code, when the false evidence is not given in any stage of a judicial proceeding. Considering all the circumstances we reduce the sentence to six months. This decision will cover the other two cases, Revision Applications Nos 198 and 199, in which also the sentences are reduced to six months respectively.