False evidence and offences against public justice - Bharatiya Nyaya Sanhita

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1. Giving false evidence: section 227
2. Fabricating false evidence: section 228
3. Punishment: sections 229 to 231
4. Causing disappearance of evidence: section 238
5. False claims and false charges: sections 242 to 248
6. Harbouring an offender: section 249
7. Problem
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Two definitions to learn word for word. Giving false evidence (s.227) is a false statement by a person bound to tell the truth. Fabricating false evidence (s.228) is creating a false circumstance, entry or document so that it may appear in evidence and mislead the tribunal. The first is perjury by words; the second is manufacturing proof.

1. Giving false evidence: section 227

Whoever, being legally bound by an oath or by an express provision of law to state the truth, or bound by law to make a declaration on any subject, makes a statement which is false and which he knows or believes to be false or does not believe to be true, gives false evidence (old s.191 IPC). The elements:

a legal obligation to state the truth, arising from an oath, an express provision of law or a legal duty to make a declaration;
a statement, verbal or otherwise (Explanation 1);
falsity; and
knowledge or belief that it is false, or absence of belief in its truth.

Explanation 2 brings in statements of belief. A witness who says he believes a signature is Z's, when he does not believe it, gives false evidence (illustration (b)); a witness who honestly believes it is Z's does not, even if it turns out to be a forgery (illustration (c)). Saying “I know Z was there” when one knows nothing on the subject is false evidence, whether or not Z was in fact there (illustration (d)). An interpreter who gives a false translation on oath is covered (illustration (e)).

2. Fabricating false evidence: section 228

Whoever causes any circumstance to exist, or makes a false entry in any book, record or electronic record, or makes a document or electronic record containing a false statement, intending that it may appear in evidence in a judicial proceeding, a proceeding before a public servant, or before an arbitrator, and that it may cause the person who forms an opinion on the evidence to entertain an erroneous opinion on a point material to the result, fabricates false evidence (old s.192). Putting jewels into Z's box so that Z is convicted of theft (illustration (a)), or a false entry in a shop-book to be used as corroboration (illustration (b)), are the standard examples. No oath is needed, and the offence is complete when the false evidence is created with that intention, even if it is never used.

3. Punishment: sections 229 to 231

s.229(1) (old s.193): intentionally giving or fabricating false evidence in any stage of a judicial proceeding, up to seven years and fine up to ten thousand rupees. In other cases (s.229(2)), up to three years and fine up to five thousand rupees. The fine limits are new.
A trial before a court-martial is a judicial proceeding, and so is an investigation directed by law preliminary to a court proceeding, or one directed by a court and conducted under its authority (Explanations 1 to 3).
s.230 (old s.194): false evidence intended to procure conviction for a capital offence, life or rigorous imprisonment up to ten years; if an innocent person is convicted and executed as a result, death or the same punishment.
s.231 (old s.195): false evidence to procure conviction of an offence punishable with life or seven years or more: the same punishment as that offence.
s.232 (old s.195A): threatening a person to make him give false evidence, up to seven years; if an innocent person is convicted as a result, the threatener receives the same punishment.

Sections 233 to 237 (old ss.196 to 200) extend the same punishment to using false evidence known to be false, issuing or using a false certificate, and making or using a false declaration receivable as evidence.

4. Causing disappearance of evidence: section 238

Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of it to disappear, or gives false information about it, with the intention of screening the offender from legal punishment, is punishable on a sliding scale (old s.201): up to seven years if the offence was capital, up to three years if it was punishable with life or ten years, and up to one-fourth of the longest term in other cases. The illustration: A, knowing B has murdered Z, helps B hide the body to screen him.

The prosecution must first prove that an offence was in fact committed. In Palvinder Kaur v. State of Punjab, 1952 INSC 45, AIR 1952 SC 354, a body was found in a trunk thrown into a well. The accused was acquitted of murder, and her conviction for causing disappearance of evidence was also set aside, because it had not been proved that the death was caused by an offence at all; suspicion that it was murder was not enough. A person can be guilty under s.238 even if he is also the principal offender, but the court should be slow to add this charge where the main offence is not proved.

Related sections: s.239 (old s.202), intentional omission to give information of an offence by a person legally bound to give it; s.240 (old s.203), false information about an offence; s.241 (old s.204), destroying or secreting a document or electronic record to prevent its production as evidence.

5. False claims and false charges: sections 242 to 248

s.242 (old s.205): false personation for an act or proceeding in a suit or prosecution, such as standing bail in another's name.
ss.243 to 247 (old ss.206 to 210): fraudulent removal of property to prevent its seizure, fraudulent claims to property, suffering or obtaining a decree for a sum not due, and making a false claim in court.
s.248 (old s.211): instituting criminal proceedings or making a false charge with intent to injure, knowing there is no just or lawful ground; up to five years or fine up to two lakh rupees, and up to ten years where the false charge is of an offence punishable with death, life or ten years.

6. Harbouring an offender: section 249

Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment, is punishable on the same sliding scale (old s.212): up to five years if the offence is capital, three years if punishable with life or ten years, and one-fourth of the longest term otherwise. “Harbour” is defined in s.2(13) to include supplying shelter, food, drink, money, clothes, arms, ammunition or means of conveyance, or assisting a person to evade apprehension. The Exception exempts harbouring by the spouse of the offender; parents and other relatives get no exemption.

Procedure: section 215 BNSS. No court may take cognizance of false evidence and related offences under ss.229 to 233, 236, 237 and 242 to 248 BNS, when committed in or in relation to a court proceeding, except on a written complaint by that court (s.215(1)(b)(i) BNSS, old s.195 CrPC). The same bar applies to forgery of a document produced or given in evidence in court. The court holds a preliminary inquiry under s.379 BNSS (old s.340 CrPC). In Iqbal Singh Marwah v. Meenakshi Marwah, 2005 INSC 129, (2005) 4 SCC 370, a Constitution Bench held that the bar for documents applies only where the offence was committed while the document was in the custody of the court, not to a forgery committed before it was produced.

7. Problem

A's son kills a neighbour. A burns the son's blood-stained shirt and lets him hide in A's house for a week. The son's wife sends him food there. What offences?

Issue. Whether A is guilty of causing disappearance of evidence and of harbouring, and whether the wife is protected.

Law. Section 238 punishes causing evidence to disappear with intent to screen the offender; s.249 punishes harbouring with the same intent, with an exception for the spouse.

Application. A knew the offence had been committed, destroyed the shirt to protect his son, and sheltered him. Murder being capital, A faces up to seven years under s.238 and up to five years under s.249. A father has no exemption. The wife supplied food, which is harbouring under s.2(13), but she is the offender's spouse.

Conclusion. A is guilty under ss.238 and 249; the wife is not guilty of harbouring because of the Exception to s.249, though the prosecution must, as in Palvinder Kaur, prove that the neighbour's death was murder.

How this is examined

The common questions are “Define false evidence. Distinguish giving and fabricating false evidence” (10 marks) and short notes on s.238 or harbouring. Write the two definitions with an illustration each, then the punishment scale in ss.229 to 231, then s.238 with Palvinder Kaur, and close with the s.215 BNSS complaint requirement and Iqbal Singh Marwah.