The public servant must be legally competent to order a person to be bound by an oath or affirmation to state the truth and the person ordered to do so must refuse to so bind himself. A witness who has not been paid to give evidence, cannot be compelled to give evidence without payment. The Patna High Court has held that when a person after having deposed as a witness refuses to take oath and comes to the witness box for cross- examination, he is guilty of committing the offence under this section.
The Delhi High Court is of the opinion that taking oath and making statement under oath are different from each other. There may be three situations—a person may be willing to take oath but not make a statement, or make a statement but not take oath, or not take oath and not make a statement.
It has been held by the Supreme Court that a person could not be convicted under this section where there is appropriate justification available for not taking oath. In the present instance the justification available to the concerned police officers was that while the others were to be cross-examined at a later stage they were being cross-examined under oath at the very beginning. This was discriminatory treatment under law and hence the committee was wrong in directing filing of a complaint under this section.
The offence under this section is non-cognizable, bailable and non-compoundable, and is triable by any magistrate.