False rape allegation can lead to prosecution under Perjury

The headline says it all. It should be common sense, but common sense is something people not expect from Indian courts, because to take just one example — common sense, and jurisprudence says that “justice delayed is justice denied”… we know the rest.

Now the full SC judgment below. Read the sentences in bold if you cannot read it all:

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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. 6

(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 7

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.

9

…………………………
..J.

(Dr. ARIJIT PASAYAT)

…………………………..J.

(P. SATHASIVAM)

New Delhi:

July 11, 2008

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