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ACHCHI KANNTJ v. AGO APPU.P. C., Ratnapura, 20,026.
False evidence—Summary punishment—Criminal Procedure Code, s. 44d*
Per Moncbbiff, J.—Section 440 of the Criminal Procedure Codewas not meant to be used in cases of confliot of evidence merely, butin cases where the falsity of the evidence of a witness appears fromsomething which has taken place in the course of the trial. .
It is irregular to exercise the powers conferred by this section wherethe knowledge and proof of the alleged false evidence is obtained fromsome source exterior to the case in which the evidence was given.
N the course of the trial of this case, one of the witnessesdeposed as follows:—“ I did not tell the police sergeant
“ that I had seen the complainant go to the accused’s boutique;”and another witness, in the course of his evidence, deposed:—“ I“ did not tell the sergeant I saw her go inside the accused's“ boutique, or that she took rice from there. I am quite sure“ I did not say so.” These statements were not called in questionby any evidence given during the trial, nor were they conflictingwith anything that had been said by the two witnesses. But afterjudgment pronounced, the Police Magistrate called the policesergeant, who contradicted the statements which the two witnesseshad made in the course of their evidence, by speaking to otherstatements made by them out of Court-. Thereupon the PoliceMagistrate ordered the first appellant to pay a fine of Rs. 25, or indefault to be imprisoned for a month, and he inflicted a similarsentence upon the second appellant.
Bawa, for appellants.—The two appellants were witnessesconvicted under section 440 of the Procedure Code. The punish-ment for the offence of perjury is under section 190, and in theschedule of the Criminal Procedure Code it is enacted that onlya District Judge shall try summarily under section 190. In thepresent case there is no perjury. Perjury implies absolutely falsestatement, but there is no proof here that the statements allegedwere really false. The Magistrate has held a summary inquiry for anon-summarv offence and convicted the appellants, purporting toact under section 440. The Magistrate was functus officio, so tospeak, as soon as he had convicted the accused in the case, and upto that point he had no reason to think that these-, witnesses hadspoken untruths. He had no right to begin a trial after the con-viction of the original accused. He, might begin a separate npn-summary inquiry. The perjury is not patent as it ought to be.It requires the evidence of the sergeant to show it; the appellants10-,
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1001.could not be convicted without his evidence; therefore ex facie■
April 22. there was no false statement; he has no Jurisdiction under section440.. Even if he had jurisdiction, his proceedings are irregular,because the appellants were not informed before the sergeant wascalled of the nature of the proceedings, so as to be able to cross-examine the policeman, who referred to statements of the witnesses'not made on oath arid made out of Court. The accused, if put ontheir trial properly, could have shown that the previous statementwas immaterial as it was not sworn testimony, and that it was notintentionally false. The conviction of these witnesses is an abuseof section 440 (Andris v. Juanis, 2 N. L. R. 74, and Balthazarv. Baba Appu, 3 N. L. R. 63).
In my opinion, the materials upon which this matter wasbrought within the 440th section of the Criminal ProcedureCode were somewhat meagre. I am disposed to doubt whether itwas a case in which a witness should be punished for giving falseevidence under that section.
But there is another objection to the course taken by the PoliceMagistrate, and that is this. It was contended by Mr. Bawa, and Ithink with reason, that the falsity of a witness’ evidence shouldappear from something which has taken place in the course ofthe trial, and should not be prompted by some considerations,which had not been brought out in the course of the proceedings.
I agree with the learned counsel and with the decisions which hequoted, that this section was not meant to be used in cases where'we are confronted by a conflict of evidence; and I agree thatunless there is something in the conduct and testimony of wit-nesses, there is no ground for proceeding against them under this;section; for what the Police Magistrate has done is not to makeuse of section 440, but substantially to try the two appellants on a-charge of giving false evidence, knowledge and proof of whichwere obtained from some source exterior to the case with whichhe was dealing.
I am of opinion that this is a proceeding which does not fallwithin section 440, sub-section 1, of the Criminal Procedure Code.No doubt the suggestion made by Mr. Bawa is a very correct one,that the Magistrate might have availed himself of sub-section 4.Now, I am not aware that there is any other power inherent in theMagistrate by virture of. any other section enabling him to proceedagainst the appellants in the way in "which he did. Section 188of the Penal Code is a section which appears to me only availablein ..the District Court.,
I therefore think that this conviction must be set aside.
ACHCHI KANNU v. AGO APPU