k) Taking of Unlawful Oaths

It must be noted in the first place that the oath or engagement described by the above provision must purport or be intended to bind the party to whom it is administered to one or other of the things therein specified. On the other hand, the form of the oath or engagement is not essentially material so long as it is intended and considered to be binding. In Rex vs. Moors46 it was held that if the oath or engagement was read from a paper at the time it was administered, still it is not necessary to produce such paper, but parole evidence of its purport will suffice. So, parole evidence of any declaration made by the defendant at the time he administered the oath will be received in proof of the nature of the oath if that does not sufficiently appear from the words of the oath itself47. (But see Section 558 of the Code of Organization and Civil Procedure as applied in Criminal matters by Section 513 of the Criminal Code).

It must also be noted that the punishment provided by the said Section 76 is incurred for the mere act of administering or causing to be administered or taken the oath or engagement for any of the purposes therein described. If such purpose is carried out or attempted the person administering or causing to be administered the oath or engagement may be liable as accomplice.

(k) Taking of Unlawful Oaths

Section 77 provides that the punishment applicable to the preceding crime of administering unlawful oaths or engagements for any of the purposes described in Section 76 applies also to any person who shall take any such oath or engagement provided he shall not have been compelled to take the same.

For the notion of “compulsion” we have to make reference to our studies of last year. Under Section 34 “no person is punishable for any act committed or omitted by him, if he was constrained thereto by an external force which he could not resist” . But in respect of this offence the law makes a qualification to this general rule. It lays down that compulsion shall not avail as a justification or an excuse to a person taking such oath or engagement unless within four days from the cessation of such compulsion, he discloses the fact to the competent authority.

46 East 419n (b) 47 Vide Archbold, pg. 1152