The gravity of the false statement, the circumstances, and its tendency to impede justice should be considered before taking action under Section 340 of the Code for giving false evidence.

This is an appeal preferred by a witness as per Section 341(1) of the Code of Criminal Procedure (for short 'the Code'). Appellant was examined as PW 9 in a Sessions trial (in S.C. No. 51/88) held in the Second Additional Sessions Court, Ernakulam. Appellant deposed in court quite contrary to what he had said in a statement recorded by a magistrate as per Section 164 of the Code. Learned Sessions Judge, while disposing of the Sessions Case, took the view that appellant has given false evidence knowingly and without any regard for truth. Learned Sessions Judge considered it expedient to make an enquiry and hence issued a notice to the appellant to show cause why he should not be proceeded against for the offence under Section 193 of the Indian Penal Code. After considering the cause shown by the appellant, learned Sessions Judge caused a complaint to be filed before the local Chief Judicial Magistrate.

2. Section 341 of the Code provides an appeal at the instance of a person against whom a complaint has been made under section 340 of the Code. According to the appellant, he gave the statement before the magistrate who recorded it under section 164 of the Code as he was threatened by the police to say so. Appellant was interrogated by the investigating officer in a murder case. When he figured as eye-witness, investigating officer took steps to have his statement recorded by a magistrate under section 164 of the Code. In that statement, appellant had said, on oath, that he saw the occurrence. But when he was examined as prosecution witness in the Sessions Court, appellant said that he did not see the occurrence and what he told the magistrate earlier was under threat and coercion exerted by the police. Learned Sessions Judge felt that appellant resiled from his earlier statement deliberately and hence found it expedient to resort to the action contemplated in Section 340 of the Code.

3. No doubt, what, the appellant said before the magistrate and what he deposed before the Sessions Court are diametrically opposite to each other. At least, one of them must, therefore, be necessarily false. According to the appellant, what he told the magistrate was false. It is not the law that every false testimony should be put through the procedure prescribed in Section 340 of the Code. To attract the procedure, the person concerned should have intentionally given false evidence for the purpose of being used in a judicial procedure and the court should have been of opinion that it was expedient in the interest of justice to take action against him. Merely because a person gave false evidence, it is inadvisable or inexpedient to take action against him. "It is not any and every statement made by a witness that the court would wish to examine. If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury (vide Muraleekrishna Das v. I.G. of Police, 1978 Ker LT 292).

4. When a person resiles from his earlier statement, whether such statement was given on oath or not, the court has to decide whether it was the earlier statement that was false. If the earlier statement was false, no witness is expected to stick to it just to escape from a prosecution for perjury.

5. Beamount, C.J., has stated half a century ago in Ningappa v. Emperor, AIR 1941 Bombay 408 : (1942 (43) Cri LJ 167) that "no doubt, a man making a statement on oath before a Magistrate under S. 164 should speak the truth; but if he does not, the least he can do is to tel