Courts ackowledge the evil of Perjury

This post has connection to the post about Counter Cases possible in case of false criminal cases against one(whether the cases against you are still going on, or decided).

*********************Supreme Court Judgement about Perjury in a Rape case**************

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CRL.) NOS. OF 2008
(CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)



Mahila Vinod Kumar i .....

Petitioner

Versus

State of Madhya Pradesh .....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.



1. Heard learned counsel for the petitioner.

2. Delay condoned.

3. Though, we are not inclined to entertain the special leave petitions, but we find that there is a need for expressing views on action to be taken for maliciously setting law into motion.

4. The petitioner lodged a report against two persons at Pichhore Police Station to the effect that on 28.1.1993 between 6.00 to 7.00 a.m. she was waylaid by them who dragged her and committed rape on her, one after another. She claimed to have narrated the incident to her father and uncle and, thereafter lodged the report at the police station. On the basis of the report, matter was investigated. The accused persons were arrested. Charge-sheet was filed. The accused persons faced trial for alleged commission of offence punishable under Section 376(2)(g) of the Indian Penal Code, 1860 (in short `the IPC'). The accused persons abjured their guilt. During trial, the petitioner stated that she had actually not been raped. As she resiled from the statement made during investigation, she was permitted to be cross-examined by the prosecution. She even denied to have lodged the first information report (Exh.P-1) and to have given any statement to the police (Exh.P-2). In view of the statement of the petitioner, the two accused persons were acquitted by judgment dated 28.11.2001. The Trial Court found that the petitioner had tendered false evidence and had fabricated evidence against the accused persons with the intention that
such evidence shall be used in the proceedings, and, therefore, directed cognizance in terms of Section 344 of the Code of Criminal Procedure, 1973 (in short `the Code') to be taken against the petitioner. A show-cause notice was issued and the case was registered against the petitioner who filed reply to the effect that being an illiterate lady, she had committed the mistake and may be excused. The Trial Court found that the petitioner admitted her guilt that she had lodged false report of rape against the accused. She was, accordingly, sentenced to undergo three months' simple imprisonment. Aggrieved by the order, the petitioner filed an appeal before the Madhya Pradesh High Court, which, by the impugned order, was dismissed.



5. Stand before the High Court was that being an illiterate

lady, she does not understand law and the particulars of the

offence were not explained to her and, therefore, the appeal

should be allowed. This was opposed by the State on the

ground that the petitioner had admitted her guilt before the

Trial Court and, therefore, the conviction is well founded. The

High Court perused the records of the Trial Court and found

that in the show-cause reply she had admitted that she had

told lies all through. The stand that the particulars of the

offence were not explained to her, was found to be equally

untenable, because in the show-cause notice issued, relevant

details were given. In the first information report, and the

statement recorded by the police, she had clearly stated that

she was raped by the accused persons. But in Court she

denied to have stated so. Learned counsel for the petitioner

submitted that the Court imposed 15 days' simple

imprisonment which is harsh. But that is not the end of the

matter. The petitioner filed an application before the High

Court stating that a wrong statement was made before the

High Court that she had already suffered custody for 15 days,

which weighed with the High Court to reduce the sentence.



6. Learned counsel for the petitioner stated that being a girl

of tender age, she was pressurized by her mother and uncle to


give a false report. This is at variance with the statement

made in court during trial to the effect that she had not

reported anything to the police. It is a settled position in law

that so far as sexual offences are concerned, sanctity is

attached to the statement of a victim. This Court, has, in

several cases, held that the evidence of the prosecutrix alone

is sufficient for the purpose of conviction if it is found to be

reliable, cogent and credible. In the present case, on the basis

of the allegations made by the petitioner, two persons were

arrested and had to face trial and suffered the ignominy of

being involved in a serious offence like rape. Their acquittal,

may, to a certain extent, have washed away the stigma, but

that is not enough. The purpose of enacting Section 344,

Cr.P.C. corresponding to Section 479-A of the Code of

Criminal Procedure, 1898 (hereinafter referred to as `the Old

Code') appears to be further arm the Court with a weapon to

deal with more flagrant cases and not to take away the

weapon already in its possession. The object of the legislature

underlying enactment of the provision is that the evil of

perjury and fabrication of evidence has to be eradicated and

can be better achieved now as it is open to the courts to take

recourse to Section 340(1) (corresponding to Section 476 of

the Old Code) in cases in which they are failed to take action

under Section 344 Cr.P.C.



7. This section introduces an additional alternative

procedure to punish perjury by the very Court before which it

is committed in place of old Section 479 A which did not have

the desired effect to eradicate the evils of perjury. The salient

features of this new provision are:

(1) Special powers have been conferred on two specified

Courts, namely Court of Session and Magistrate of the

First Class, to take cognizance of an offence of perjury

committed by a witness in a proceeding before it instead

of filing a complaint before a Magistrate and try and

punish the offender by following the procedure of

summary trials. For summary trial, see Ch. 21.



(2) This power is to be exercised after having the matter

considered by the Court only at the time of delivery of the

judgment or final order.

(3) The offender shall be given a reasonable opportunity of

showing cause before he is punished.

(4) The maximum sentence that may be imposed is 3

month's imprisonment or a fine up to Rs.500 or both.

(5) The order of the Court is appealable (vide S. 351).

(6) The procedure in this section is an alternative to one

under Sections 340-343. The Court has been given an

option to proceed to punish summarily under this

section or to resort to ordinary procedure by way of

complaint under Section 340 so that, as for instance,

where the Court is of opinion that perjury committed is

likely to raise complicated questions or deserves more

severe punishment than that permitted under this

section or the case is otherwise of such a nature or for

some reasons considered to be such that the case should

be disposed of under the ordinary procedure which
would be more appropriate, the Court may chose to do so

[vide sub-section (3)].

(7) Further proceedings of any trial initiated under this

section shall be stayed and thus, any sentence imposed

shall also not be executed until the disposal of an appeal

or revision against the judgment or order in the main

proceedings in which the witness gave perjured evidence

or fabricated false evidence [vide sub-section (4)].




8. For exercising the powers under the section the Court at

the time of delivery of judgment or final order must at the first

instance express an opinion to the effect that the witness

before it has either intentionally given false evidence or

fabricated such evidence. The second condition is that the

Court must come to the conclusion that in the interests of

justice the witness concerned should be punished summarily

by it for the offence which appears to have been committed by

the witness. And the third condition is that
before

commencing the summary trial for punishment the witness

must be given reasonable opportunity of showing cause why

he should not be so punished. All these conditions arc

mandatory. [See Narayanswamy v. State of Muharashtra,

(1971) 2 SCC 182].



9. The object of the provision is to deal with the evil perjury

in a summary way.



10. The evil of perjury has assumed alarming propositions in

cases depending on oral evidence and in order to deal with the

menace effectively it is desirable for the courts to use the

provision more effectively and frequently than it is presently

done.



11. In the case at hand, the court has rightly taken action

and we find nothing infirm in the order of the Trial Court and

the High Court to warrant interference. The special leave

petitions are, accordingly dismissed.





................................J.
(Dr. ARIJIT PASAYAT)



................................J.
(P. SATHASIVAM)
New Delhi:
July 11, 2008

Post-498a Scenario: When passport is feared of being seized, and person anticipates detention for an unreasonable time

If the husband(or the victim family) is working abroad, and is facing a high profile opponent who is legally terrorising them, with the girl's side having a lot of political or other influence, and has a lot of clout in the system. The bail may be opposed strongly, or after bail they may have to attend police station at frequent interwels or at the will of the police- this itself is a worry- but an application to relax the bail conditions could be the remedy).


The main problems are whether the bail would be denied or whether the passport will be impounded/seized and they will be kept remanded for an unreasonable time(there by affecting ones job) with influence and money power.

See how Mr.Rao had got the passport released from HC andhra(see details in message: http://groups.yahoo.com/group/saveindianfamily/message/19156 ). One could also try emailing Mr.Rao email: rao257 (at) yahoo.com.

But in these kind of cases the real trouble is with the influence and power of the girls side, and to nuetralise the potency of the girl's side influence, one has try and submit petitions(to Authorities right from PM, President to MP,MLA, political party local presidents & other important office holders, similarly with the police authorities from IG to SHO(Station's Senior inspector, clearly mention the police station and Court where ur case is going on in your petitions)) mentioning the boys apprehensions of being detained for an unreasonable time in india with his passport also not being given back, there by affecting/losing his job abroad, etc. etc.

The effect of this kind of petition is not because all those higher officials and authorities care a damn, but that the Station Senior inspector, other police officers involved in the case and DCP of the zone, and the Magistrate(put a copy to the magistrate too, ask your advocate about this) will think twice about yielding to the influence of the girl's side.

But one may have reservations about this strategy, since both the families could have a lot of common friends and 'biradri' folks between them- but what better to do , in this case(or for that matter any other), other than to fight out fully.

This is exactly the same strategy which saved many victims(this was actually advised by a high ranking police officer, so do understand that this is a time-tested and sure-fire strategy)- as this has worked out in the boys favour in cases where the girls side were putting a lot of pressure right from delhi to the local congress committee, etc.- but they are all free and hitting back at the girls side now

The son can avoid coming to India and just be where he is, but the parents Passports also could be seized, and hence they cant visit their son + this 498a case will never be closed until the son comes and faces the legal procedures. Better fight now, sooner or later u will have to either do it or submit to the oppression- this is our frank opinion.

Some references, coutsey to the respective sources(not plaigerism, just info dissemination)

1) http://ipc498a.wordpress.com/2007/04/12/sc-judgment-maneka-gandhi-vs-union-of-india-1978/ ->

SC Judgment: Maneka Gandhi Vs Union Of India (1978)Published April 12th, 2007 :

This will be useful to those of you hounded by a Red Corner Alert or threats of Passport impoundment.
The SC intrepreted this as a case for due process. The article from the Hindu is given below:

http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=5154

The SC kept the passport, but she was given a hearing.
A warning! It is a 144 page judgment.