Writ petition against dismissal of perjury case by lower court

835 votes

ue to this the related other section which can be used are :
IPO 191: Giving false evidence, judicial perjury
IPO 192: Fabricating false evidence
IPO 193: punishment for offenses u/s 191 & 192 IPO
IPO 194 & 195: Aggravated forms of offenses u/s 191 & 192 IPO
IPO 196 to 200: Offenses punishable in the same way as giving or fabricating false evidence
IPO 201 to 229: Offenses against public justice

OFFENCES U/S 195 CrPC:
(a) IPO 172 to IPO 188 relate to contempts of the lawful authority of public servants and also of attempt to commit or conspiracy to commit such offense or abatement there of.

(b) IPO 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offense is alleged to have
been committed in, or in relation to, any proceeding in any court.

CrPC 195:
Generally any person can lodge complaint of an offence and set the law in motion. Exception to this rule is offences. Specified u/s 195 CrPC. Section 195 lays down rules to be followed by the court to take cognizance of an offence specified under it. Court has full discretion in deciding whether any prosecution is necessary or not.

Considerations for sanctioning prosecution:
a) Administration of justice is not hampered
b) Not to be used as a means for wreaking vengeance by people
c) Every incorrect or false statement does not make it incumbent upon the court to order prosecution.
d) Judicial discretion to order prosecution only in the larger interest of administration of justice.
e) When police finds that complaint was false and case is cancelled u/s 173 CrPC, the police can start proceeding u/s 211 IPO against person who lodged false complaint.
CrPC 340:
Section 340 CrPC lays down directions for the guidance of the court which desires to initiate prosecution in respect of an offence covered under IPO 195. Court can take action and make a complaint to concerned magistrate u/s 340 either suo motu or on an application made to it on that behalf. Sanction of the public servant court is a must for offenses in (a) under Criteria for establishing offence. Sanction of the court is a must for offenses in (b). under Criteria for establishing offense. Any Civil, Revenue or criminal court can proceed under this section. Person against who proceedings are initiated has no right to participate in preliminary Inquiry. The trial for the offence will be held by the magistrate based on complaint by the court acting u/s 340 sanctioning prosecution. The order is appealable only once and no second appeal or revision lies.

Requirements for starting prosecution:
The court is not bound to start prosecution. Only if it is expedient in the interest of justice and affects administration of justice. Contradictory evidence is not enough for prosecution. Offence must have been committed intentionally. Perjury should appear to be deliberate and conscious. Conviction is reasonable probable or likely. Reasonable foundation for the charge must exist. Statement given by complainant in FIR u/s 154 cannot be basis of prosecution u/s 340. Statements given to police u/s 161 are not evidence.
PROCEDURE:
Receive application or suo motu – application can be filed by a person not party to the proceedings in relation to which the offense is committed. The court where application is filed only decides if inquiry should be made Hold preliminary inquiry (not essential in law). Record findings . Make a complaint in writing – include offence, facts on which it is based and evidence available for proving it. The judge has to sign the complaint himself. Forward it to a first class Magistrate having jurisdiction.
IPC 192:
No condition to be bound by oath. Reasonable prospect of proceedings and intention to use the fabricated evidence in such proceedings. Proceedings need not be in progress. Material omission is made in an entry or a statement Affidavit- making a document containing false statement to be used as evidence in a judicial proceeding.
Criteria:
Particular Intention that false document so made should appear in evidence in a judicial proceeding. Reasonable prospect of using the document is sufficient to establish offence. Should be material to the result of the proceedings- Judge is made to entertain an erroneous opinion touching nay point material to the result of such proceeding based on such fabricated evidence.

IPO 199: False statement made in declaration which is by law receivable as evidence.
IPO 200: Using as true such declaration knowing it to be false.

Advocate Dhananjay Ravikant Gangawane LawRato