If the offence is committed in any stage of a judicial proceeding it is more severely punishable than when it is committed in a non-judicial proceeding. Section 193 takes into consideration the difference between a crime perpetrated in the presence of the court which is the sanctuary of truth, before whom the gravest issues are often tried, and of those before whom matters of comparatively smaller consequences come up for decision. Section 193 provides the punishment in respect of giving or fabricating false evidence in judicial proceedings is considered much more serious in character and hence, a higher punishment of seven years imprisonment and it provides lesser punishment of three years imprisonment for similar offence of giving or fabricating false evidence in other proceedings, in other words, proceedings other than judicial proceedings. Intention is the essential ingredient in the constitution of the offence under Section 193.
If the statement was false, and known or believed by the accused to be false, it may be presumed that in making that statement he intentionally gave false evidence. In order to make a person liable for perjury it is necessary that he should have made a statement on oath regarding the facts on which his statement was based and then deny those facts on oath on a subsequent occasion. The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 but it must be established that the deponent has intentionally given false statement in any stage of the ‘judicial proceeding’ or fabricating false evidence for the purpose of being used in any stage of the judicial proceeding’. It is not necessary that the false statement should be material to the case. The gist of the offence is the giving or fabrication of false evidence intentionally. Where knowledge of falsity is proved, intention is readily presumed, mere discrepancies or contradictions in evidence due to confusion of mind or failure of memory cannot be regarded as false evidence given intentionally. Though, the term ‘Judicial proceeding’ is not defined in IPC, there are three explanations to Section 193.
Explanation (1) provides that a trial before a court martial is a judicial proceeding; explanation (2) lays down that an investigation directed by law, preliminary to a proceeding before a court of justice, is a stage of a judicial proceeding, though that investigation may not take place before a court of justice; this explanation takes in, for instance, committal proceedings. Under Explanation (3) an investigation directed by a court of justice according to law and conducted under the authority of justice is a stage of a judicial proceeding, though that investigation may not take place before a court of justice. This explanation covers enquiries before officers deputed by courts of justice to ascertain, for instance, on the spot, the boundaries of land.
Thus, the three explanations of Section 193 include within the expression ‘judicial proceeding’ certain proceedings, which on a strict construction of the said expression, may not have been included under it. However, there is definition of ‘judicial proceeding’ under Section 2(i) of the CrPC, which states that a judicial proceeding includes any proceeding in the course of which evidence is, or may be legally taken on oath. No prosecution can be instituted for an offence under Section 193 without the previous complaint of the court or public servant concerned as required by Section 195 of the CrPC. The offence under Section 193 is non-cognizable but warrant may issue in the first instance. It is bailable but not compoundable, and is triable by any Magistrate.