The Supreme Court has observed that, in order to attract the offence of perjury, a statement should be made deliberately and consciously which is found to be false as a result of comparing it with contrary unimpeachable evidence, documentary or otherwise.

The bench allowed an appeal, setting aside Bombay High Court order that ordered prosecution of a man who allegedly made 'false statements' in his bail application. To come to this conclusion, the High court had relied on a report filed by investigating officer which stated that the allegations made in the anticipatory bail application were false.

In this case (Aarish Asgar Qureshi vs. Fareed Ahmed Qureshi), the husband had approached the High Court seeking bail in a complaint filed by his wife alleging offence of Section 377 IPC against him. The High court allowed his plea on the ground that there was nothing in FIR to show that there was sexual intercourse between him and his wife during the course of their separation. In his bail application, he had made allegations of illicit relationship his wife had with another person.

Preliminary investigation report by the investigating officer filed only two days after the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable evidence contrary to the statements that have been made in the anticipatory bail application, the Apex court bench said, while considering the man's appeal, after noticing the facts of the case. The bench referred to some earlier judgments on the subject of perjury and observed:

"It is clear therefore from a reading of these judgments that there should be something deliberate - a statement should be made deliberately and consciously which is found to be false as a result of comparing it with unimpeachable evidence, documentary or otherwise. In the facts of the present case, it is clear that the statement made in the anticipatory bail application cannot be tested against unimpeachable evidence as evidence has not yet been led. Moreover, the report dated 12.11.2011 being a report, which is in the nature of a preliminary investigation report by the investigating officer filed only two days after the F.I.R. is lodged, can in no circumstances be regarded as unimpeachable evidence contrary to the statements that have been made in the anticipatory bail application."

The bench further observed that the High Court did not scrutinise any evidence as there was none to scrutinise. It said:

"Further, all that the High Court has seen is a preliminary investigation report, and that too by a police officer, together with a High Court order granting anticipatory bail, none of which can be said to be unimpeachable evidence against which it can clearly be stated that a prima facie case of perjury can be said to have been made out"