The Kerala High Court on June 24, 2019, in the case of Sajan Mathew v. State of Kerala has held that legitimate stage when the court could take cognizance of offence of perjury invoking Section 344 of the Code of Criminal Procedure, 1973, is the time of court delivering the judgment or final order terminating the proceeding before it.
The judgment was passed by Justice T.V. Anilkumara on a petition filed under Section 482 CrPC challenging the order passed by the Grama Nyayalaya, Kattappana initiating criminal proceedings against the petitioner following its decision to proceed against him under Section 344 of the Code.
The petitioner was a defence witness in an accident case deposed before the Grama Nyayalaya that the accident was the result of negligence of the scooterist and not that of the bus driver. Grama Nyayalaya formed an opinion that he was uttering false hood with the sole intention of saving the accused from the clutches of criminal charge. On the same day, the Nyayalaya ordered registration of case against him, invoking powers under Section 344 CrPC.
Section 344 CrPC provides for summary trial of persons who are guilty of perjury. In order that provisions of Section 344 may apply, the court is under a statutory duty to form an opinion that the witness appearing in the proceeding before it has knowingly or willfully given or fabricated false evidence.
Taking note of the provision, the court said that "A meticulous reading of the Section would make it clear that the offence made punishable under Section 344 is committed only when the witness had knowingly or willfully given false evidence or had fabricated evidence with the intention that such evidence should be used in the proceeding before the court. To put it otherwise, an act of witness not being willful or intentional cannot be said to constitute an offence of perjury liable to prosecution under Section 344 of the Code. In order to enable the court to form an infallible opinion as to the true knowledge or intention with which the witness testified in the proceeding and further to decide on the proposed action, it is incumbent on the court to wait for the completion of entire evidence and final arguments in the case because the opinion to be formed must be the outcome of appreciation of entire evidence recorded by it. Any haste shown by the court in the course of trial and any hurried opinion formed in this respect will result in premature consideration of the matter disabling the court from clearly and precisely assessing the truth or reliability of the statement of the witness in its proper perspective."
The court also noted that the impugned order of the Grama Nyayalaya taking cognizance of offence of perjury against the petitioner was passed without completing trial and before delivery of judgment or final order.
"It is true that the learned Nyayadhikari has tried to assign reasons which appeared to be just and proper to him to form an opinion that the petitioner had willfully given false evidence. But law doesn't permit such a premature opinion being formed at an early stage of the proceeding since such an approach cannot be said to be conducive to the smooth progress of trial and in certain cases, such a pre-judged action is likely to put a witness of truth also in terror. Therefore, the legitimate stage when the court could take cognizance of offence of perjury invoking Section 344 of the Code is the time of court delivering the judgment or final order terminating the proceeding before it,” the court said.
The learned counsel, appearing for the petitioner pleaded before the court that the impugned order is liable to be set aside as the Grama Nyayalaya failed to give the petitioner a reasonable opportunity to show cause why prosecution as contemplated by Section 344 ought not to be initiated.
The court, however, rejected the plea holding that Section 344 does not oblige the court to give opportunity to the offender to be heard as to why prosecution should not be initiated against him.
"Once the court determines to proceed against the perjurer under Section 344 and takes cognizance of offence of perjury, no offender can complain that he was not heard in the matter and consequently cognizance is illegal. This is because of the widely accepted principle of criminal jurisprudence that an accused has no right to be heard at the stage prior to issue of process against him. All that he is entitled under Section 344 is to an opportunity to contest the charge of perjury in accordance with the procedure established for trial of summons case after the offence is taken cognizance of and notified to him,” the court said.