An Article on perjury

Two developments in two sensational criminal cases — the Best Bakery case relating to the Gujarat communal riots and model Jessica Lall's murder — have brought into sharp focus the issue of "perjury", defined in Indian penal laws as "giving false evidence".

While the Bombay special trial court in the Best Bakery case has issued notices to Zaheera Sheikh for "perjury" or "false evidence" as she had retracted her statements several times, the Delhi high court has suo motu taken cognisance of the police/prosecution theory on "hostile witnesses" in the Jessica Lall murder case.

Both the cases demonstrate that time has come in India to strictly enforce the law relating to "perjury" or "false witness", which would go a long way in future criminal cases. For a person's statement on oath, testimony, and/or in sworn affidavit is regarded as truth (unless the contrary is established), are vital evidence on which judicial decisions are made.

The high rate of acquittals in India in criminal cases are mainly due to witnesses turning hostile. The criminality of "buying" the witnesses by the influential who find themselves in the dock can be handled only by strictly enforcing the penal law on perjury. Now the allegation that Zaheera Sheikh took money to retract her statement is open to judicial scrutiny. Witnesses turning hostile in several cases take not only the courts for a ride but Justice itself.

Zaheera Sheikh is not a lone example of someone allegedly having committed "perjury". In a majority of cases, witnesses give false evidence or retract their statements at a later stage, which results in the accused being acquitted. As a judge put it, cases of perjury would outnumber all other categories of cases, if the Indian courts started taking action against falsehood. But the Best Bakery case, as indeed the Jessica Lall murder case, have become high profile cases and are therefore being discussed in detail.

The Indian Penal Code (IPC) under Section 191 defines perjury as "giving false evidence" and by interpretation it includes the statements retracted later as the person is presumed to have given a "false statement" earlier or later, when the statement is retracted. But hardly anyone, including the legal experts, could recall a single case in which a person was prosecuted for making a false statement before the court. With notices to Zaheera Sheikh and the Delhi high court's suo motu cognisance in the Jessica Lall case, this aspect has come to the forefront in the country.

Under section 191 of IPC, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC which prescribes the period of punishment as seven years imprisonment. However, action against making a false statement should be initiated during the trial itself, and not at the end of it — which may take a long time. That may be a deterrent against persons who intentionally mislead the court or make false statements under oath or file tainted affidavits much against the public good. This is one of the reasons — initiating action against a person for perjury after the trial is over — why in India several perjury cases go totally unnoticed as a fresh trial begins on perjury running into years.

In the US, the perjury law applies to all material statements or information provided under oath to "a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered". The Indian position, too, is almost similar as Section 191 IPC makes clear that "whoever, being legally bound by an oath" makes a statement which is false, that person is said to have given false evidence. But, in application, it lies with the prosecution, which is not as effective in India, as it is in the US.

Unlike in the US, which divides perjury into three categories, in India perjury encompasses statement, material and/or any other form of evidence. The use of false material and inconsistent declarations also fall under the category of "perjury". For instance, in the Jessica Lall case, it has to be seen whether the "sudden" invention of "two weapons" having been used constituted false material. In Zaheera Sheikh's case it is her inconsistent declarations and retractions.

Both the cases have underscored the need for using the existing law against perjury in all criminal trials and, as Justice V.N. Khare, former chief justice of India observed, it is high time that the perjury law is strictly enforced by all the courts concerned. As he put it, "If there is will, the country could be zero crime zone."