Punishment

in the course of the proceedings can usefully retract, in view of the rule we have laid down that the witness can retract until the discussion is closed. Some writers hold that in view of this rule the order of the Judge or Magistrate cannot deprive the witness of the benefit which the law itself allows him, and that therefore, if notwithstanding that the order has been made and proceedings may have been initiated against the witness for false testimony such witness retracts before the hearing of the cause in which the false testimony is closed, he is exempt from punishment. If, however, the proceedings in that cause had to be suspended on account of such suspicion of false testimony (vide sub-section 2 of Section 600, Code of Civil Procedure), the order of the Court for proceedings to be instituted against the witness makes the continuation or resumption of the hearing of that cause impossible until the proceedings on the false testimony are terminated; in such case the decree of suspension is considered as closing the hearing of the cause in regard to the witness and he cannot, therefore, any longer usefully retract148 .

Punishment

The crime of false testimony is not of the same gravity when it is committed in a civil cause as when it is committed in a criminal cause. In both cases, it is true, there is an offence against the administration of justice; but the effects both in regard to society at large as well as in regard to the individual are not injurious in the same degree. In civil causes the interests involved are ordinarily merely pecuniary, and even where the false testimony has occasioned a wrongful judgement, the prejudice suffered by the party aggrieved is, if not always at least often, remediable. But in criminal causes the interests involved are much more sacred and more directly affect the maintenance of good order consisting in the repression of offences; and the false testimony is calculated to provoke a more grievous injury which is almost always not redressable, both when it favours the impunity of a guilty person as when it damages an innocent person. Hence the difference which the law makes in the punishment.

The punishment for false testimony in a civil cause is hard labour from seven months to two years (Section 103).

148 Maino, op. cit., art. 245, para. 1124

The punishment for false testimony in a criminal cause varies with the gravity of the offence in the trial of which the false testimony was given. If such offence was liable to a punishment not higher than two years hard labour or imprisonment, the punishment for the false testimony given against or in favour of the accused is hard labour from nine months to two years. If such offence was a crime liable to a punishment higher than two years hard labour or imprisonment, the punishment for the false testimony is hard labour from two to five years. But, if the accused was sentenced to a punishment higher than five years hard labour or imprisonment the false witness who gave evidence against him at the trial or of whose evidence use was made in such trial against the person sentenced, shall be liable to such higher punishment. Thus, in the case of condemnations involving a higher punishment than five years’ imprisonment, with or without hard labour, the principle of “lex talionis” so common in antiquity, so much repudiated in modern times, is applied. The false witness is visited with the same punishment to which the injured party is condemned. This, Jameson wrote in 1844, is in accordance with the public feeling and the example of many codes. If, therefore, the prisoner against whom the false testimony was given or use made of the false testimony, is sentenced to death, the false witness is also, in respect of this crime, subject to what we shall presently say, liable to death.

"Soma celebrated writers on jurisprudence”, it is again Jameson writing149 , "have doubted whether this atrocious way of depriving a fellow creature of life, ought to be held as murder, or in any case to be punished capitally. It is not denied by any that the guilt of this crime is equal to that of wilful murder. It implies a degree of deliberate malice and dark villainy which far surpasses most instances of murder. It was justly held by the Romans to be a species of assassination and was as such punished with death by the ‘lex Cornelia do Sicariis’” .

Jameson goes on to review the English authorities on this point according to the balance of which killing a man by perjury is not murder and he concludes by recommending that, notwithstanding the English practice, the provision of our Code which, without classifying this atrocious crime under the head of homicide, punishes it, nevertheless, as such, should be retained. “There seems to be no sound argument against the ordinary punishment of murder being awarded for this heinous and worst

149 p. IX