Drafting Perjury 725f41

Drafting / Institution of Application u/s 340 r/w195 of CrPC, 1973 Nature of Grievance Perjury proceedings are legal action against those persons who have knowingly made false statements or have led false evidence in the Court proceedings, like Knowingly giving of false evidence by making false statement on oath; Fabricating / creating false evidence, by making a document containing a false statement, or, by making false entry in any book or record, or, by creating fake circumstances; Knowingly using a false evidence, as genuine evidence; Knowingly issuing or g a false certificate which may be used in evidence; Knowingly using a false certificate, as true certificate; Voluntarily making of a false statement in a declaration as to the point material to the object of such declaration to a Court or to any public Servant: Knowingly using a declaration containing a false statement, as true declaration; Causing disappearance of evidence of offence, or giving false information to shield / protect offender; Altering / tempering of documents which are there in the custody of the Court. There are several offences being defined under IPC which are called as act of perjury. Depending upon the nature of acts and omissions attributed and alleged against the person, the applicable section may be invoked against him.

Sr. No.

Offence

1

IPC Section 191 Knowingly giving of false evidence by making false statement on oath:

2

IPC Section 192 Fabricating / creating false evidence, by making a document containing a false statement, or, by making false entry in any book or record, or, by creating fake circumstances

3

IPC Section 196 Knowingly using a false evidence, as genuine evidence;

4

IPC Section 197 Knowingly issuing or g a false certificate which may be used in evidence;

5

IPC Section 198 Knowingly using a false certificate, as true certificate;

6

IPC Section 199 Voluntarily making of a false statement in a declaration as to the point material to the object of such declaration to a Court or to any public Servant:

7

IPC Section 200 Knowingly using a declaration containing a false statement, as true declaration;

8

IPC Section 201 Causing disappearance of evidence of offence, or giving false information to shield / protect offender;

If the person Accused is apparently not directly involved in the alleged offence, but has caused the occurrence of the offence by way of indirect participation in the crime or otherwise, the criminal liability may be fastened upon such persons on the basis of sharing the “common intention” as suggested and defined u/s 34 of IPC; or by way of “abetment” as suggested and defined u/ss 107 to 116 of IPC; or by way of “criminal conspiracy” as suggested and defined u/s 120A of IPC, 1860. Read further at links below. http://thepracticeoflawjalan.blogspot.in/2012/04/offence-common-intention-criminal.html http://thepracticeoflawjalan.blogspot.com/2013/01/abetment.html http://thepracticeoflawjalan.blogspot.com/2012/04/offence-criminal-conspiracy.html In such cases, criminal proceedings may be initiated against such persons by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court (civil or criminal), praying therein, for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence.

What is a Litigation / Perjury proceedings: 1.

The legal process in the Court of law is initiated by the presentation / institution of a Case, whether in the form of a Suit, Petition, Application etc, in the competent court of jurisdiction.

2.

Every litigation presupposes the accrual of “cause of action”, that is to say, reason for initiating legal action in the Court of law.

3.

Accrual of cause of action implies and presupposes infringement of litigant’s some statutory right / fundamental right / equitable right / contractual right / or any other right recognized under the statutes or customs.

4.

In order to commence a legal action, the person must have some real grievance, which is the foundation of any legal action. For having right to move the court of law, the right sought to be enforced should have already come into existence, and there should be an infringement of it, or at least a serious and imminent threat exist of its infringement.

5.

Perjury proceedings are legal action against those persons who have knowingly made false statements or have led false evidence in the Court proceedings.

6.

Ordinarily, in Criminal law, there are two ways by which the machinery of law is set into motion against any person –

1.

By ing FIR (First Information Report) before Police u/s 154 or by making Application u/s 156(3) to the Magistrate, thereby Magistrate directing the Police to the FIR, investigate the offence and file Police Report in a time bound manner;

2.

By making a private complaint before the concerned Magistrates Court u/s 200.

7.

Ordinarily, anyone may set in motion the criminal law, either in writing or orally, either by a complaint before the Police or before the Magistrates court. However, owing to the character of certain offences under the Indian Penal Code as affecting the Public, or particular persons only, the legislature, in its wisdom, has restricted this

right in respect of certain offences, more particularly enumerated in section 195 of CrPC, 1973, and the concerned Public servants or the concerned courts can only take cognizance of the offences therein mentioned. 8.

In such cases, criminal proceedings may be initiated against guilty person by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court, praying therein for trial court to refer the said offences to the competent Magistrate Court of jurisdiction. Such Application may also be made before concerned High Court under Article 227 of the Constitution of India.

9.

The court making the complaint has to be satisfied that it appears that an offence under clause (b) of subsection (1) of section 195 of the code has been committed and that it is expedient in the interests of justice that an Inquiry should be made into that offence.

10. As observed in a Madras High Court case – “this salutary rule is founded on common sense. The dignity and prestige of Courts of law must be upheld by their presiding officers, and the courts would never leave it to the parties aggrieved to adopt such proceedings to settle personal revenge. Ramaswamy versus P Mudaliar [1938] 11. Section 195 of CrPC, 1973, bars the cognizance of certain offences by Magistrates, like the contempt of lawful authority of public servants, offences against public justice and offences relating to documents given in evidence. These offences may be taken cognizance of, only on the complaint in writing of the public servant concerned or of some other public servant to whom he is istratively subordinate; OR on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. 12. And, Section 340 of CrPC, 1973, provides a mechanism to initiate for offences under those sections set out in Section 195 of CrpC, 1973. 13. Application under this Section 340 may be taken out in any Court, Civil, Criminal or Revenue Courts, or in a Statutory Tribunal, which is declared as a Court by that Act to be a Court for the purposes of Section 195. [Section 195(3)] 14. It is a criminal offence u/ss 181, 191, 196 and 199 of IPC, 1860, to make false statements / false declarations in one’s pleadings or filing false Affidavit or knowingly giving false evidence (OFFENCES OF PERJURY) or filing of forged documents in the evidence before the Court of law, as contained in sections 463, 464, 467, 468, 469, 470, 471, 472 etc. of IPC. 15. Where aforesaid offences are alleged to have been committed during any proceedings before Court, than FIR or private complaint to Magistrates court is not permissible for ing of above offences. In such cases, criminal proceedings may be initiated against such persons by making an Application u/s 340 read with section 195 of CrPC 1973, before the concerned trial Court(civil or criminal), praying therein, for trial court to refer the above stated offences, to the competent Magistrates Court of jurisdiction, against those persons who have allegedly made false statements / false declarations in one’s pleadings or have allegedly filed false Affidavit or have allegedly knowingly given false evidence. 16. As regards alleged filing of forged document is concerned, as per an Apex Court ruling, an FIR, or Application u/s 156(3) or `complaint u/s 200 may be made, and bar created u/s 195 does not come into play. This ruling is based on the premise of the interpretation of the said section 195, wherein the Apex Court have held that bar created u/s 195 would come into play only when the alleged forgery have been committed when the forgery is alleged to have been committed when the concerned document was in the custody of the Court; and in cases where the forgery is alleged to have taken place before the case was filed, there is no bar to FIR etc. Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr (2005) 17. Where, false statements / false declaration / false evidence / forged document were given in any quasi judicial or istrative proceedings, then, a private complaint before competent Magistrates Court u/s 200 can be filed directly. Section 195 of CrPC doesn’t come as a bar in this situation. However, where the false statements / false declaration / false evidence were given before any Tribunal, and if such tribunal is declared as “Court” in the Statute for the purposes of the section 195 of CrPC, 1973, then, application has to be made in accordance with section 340 r/w 195 of CrPC, 1973.

18. Perjury proceedings are ordinarily maintained at the Court where the false statement / evidence or forgery is alleged to have been committed; and at the same time the concerned High Court would also have the jurisdiction to entertain perjury proceedings under Article 227 of the Constitution of India. 19. Coming to deliverance and dispensation of justice, the exercise of adjudicating and declaring rights and obligation of respective parties which are before the Court, by employing laws of the land, the principle of equity, and customs & usages, the Courts / Tribunals formulate its decision. 20. The principles of natural justice forms the corner stone of every judicial decision and it postulate that both the litigating parties must have equal and sufficient opportunity to deal with the allegations made against them. 21. A Judicial decision must be a self contained document from which it should appear as to what the facts of the case were and what was the controversy, which was tried to be settled by the Court / Tribunal. 22. The process of reasoning by which Court came to a particular conclusion and decreed or dismissed the case, should clearly be reflected in the decision. 23. The decision should be on the basis of evidence on record and in accordance with law. 24. The fate of Justice is tied to the thread of reason: Reasoned decisions are inescapable in the entire scheme of istration of Justice, as explained decision breathes life into court order. Reasons disclose how the mind was applied to the subject matter and reveals a rational nexus between the facts considered and conclusions reached. Recording of reasons is also an assurance that the judicial authority has applied its mind to the facts on record. The reasons employed not only be logical / conceivable but which will also deal with the substantial points which have been raised. An unreasoned Order presupposes the non consideration of evidences and submissions on record made by the Party therein and the opportunity of affording due hearing would be rendered meaningless and empty formality and thus in essence occasion the frustration of principles of natural justice for the prejudiced party. The giving of satisfactory reasons is required by the ordinary man’s sense of justice. Reasoned decisions are vital for the purpose of showing that one is receiving justice. 25. Having said all this, and to say that reasons must be given for decisions, what we really expect from the judicial authority. Reasons are appreciation of such facts and evidences which are on record, and from which the judicial authorities are entitled to draw inferences and results. Then comes the question, what is appreciation of facts and evidences. Appreciation of facts and evidences is, drawing natural and logical inferences, drawing natural and logical results, which necessarily flow from those facts and evidences [the facts would mean those facts which are self evident or are itted, or facts which are reasonably proved, disproved or not proved]. Appreciation of facts and evidence is an exercise wherein the proved existence of certain facts, provokes or persuades the decision maker to reach a certain conclusion. And to put it further straight, Reasons are those statements, whereby the decision maker will tell you, WHY your submissions to claim certain reliefs, or WHY your submissions to deny reliefs claimed, are meritorious or if are meritless; or to say, the decision maker will tell you, WHY you are entitled to the reliefs or WHY you are not entitled to the reliefs, claimed or prayed for. 26. I am hasten to add here the valuable observations of the Apex court in the case of State Of Uttaranchal Versus Sunil Kumar Vaish [2011]. Para 18: Judicial determination has to be seen as an outcome of a reasoned process of adjudication initiated and documented by a party based, on mainly events which happened in the past. Courts' clear reasoning and

analysis are basic requirements in a judicial determination when parties demand it so that they can ister justice justly and correctly, in relation to the findings on law and facts. Judicial decision must be perceived by the parties and by the society at large, as being the result of a correct and proper application of legal rules, proper evaluation of the evidence adduced and application of legal procedure. The parties should be convinced that their case has been properly considered and decided. Para 19: Judicial decisions must in principle be reasoned and the quality of a judicial decision depends principally on the quality of its reasoning. Proper reasoning is an imperative necessity which should not be sacrificed for expediency. The statement of reasons not only makes the decision easier for the parties to understand and many a times such decisions would be accepted with respect. The requirement of providing reasons obliges the judge to respond to the parties’ submissions and to specify the points that justify the decision and make it lawful and it enables the society to understand the functioning of the judicial system and it also enhances the faith and confidence of the people in the judicial system. To read further pls follow the weblink below https://vakeelkanumber.com/legalproceeding.php