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Sept, i. 1911Present: Lascelles C.J. and Middleton J.
HALLIDAY v. KANDASAMY.
509—P. C. Nuwara Eliya, 5,337.
Offence under s. 17 of Ordinance No. 11 of 1865—-Jurisdiction—Crimina 1 Procedure Code, s. 423.
Accused, an Indian cooly, entered into a contract of servicewith the superintendent of an estate at Nuwara Eliya on aKagama certificate, on which it was stated that he was notpreviously employed on any estate in Ceylon. This statementwas found to be false, and the superintendent charged the accusedin the Police Court of Nuwara Eliya, under section 17 of Ordi-nance No. 11 of 1865, with having falsely pretended that he wasnever employed on any estate in Ceylon.
Held, that the Police Court of Nuwara Eliya had no jurisdictionto try the case ; but the. Supreme Court affirmed the convictionas the accused was not prejudiced in his defence.
Lascelles C. J.—“ Nothing that the accused did at Nuwara Eliyawas done when offering to hire himself in any employment. Thecontract of hire and service was complete as soon as the accusedleft Ragama and his certificate was forwarded.
“ It was said that section 423 of the Crimina) Procedure Codeshould only apply when no objection was taken to the jurisdictionof the court of first instance. But there is nothing in the sectionor in the context which lends the slightest support to thissuggestion.”
Middleton J.—“ This application of section 423 must by nomeans be considered to obviate the requirements of the law thatcriminal proceedings should be originally instituted in the Courthaving proper and competent local jurisdiction.”
facts are fully set out in the judgment of Lascelles CJ.
This case was reserved for a Bench of two Judges by Grenier J.
Bawa, for accused, appellant.
Tambyah, for complainant, respondent.
Cur. adv. vult.
September 1, 1911. Lascelles CJ.—
This is a case which has been reserved for the opinion of a Courtof two Judges, principally on the question of jurisdiction which israised in the petition of appeal.
The complaint made by Mr. Halliday, the Superintendent ofCondegalle, was in the following terms :—
In the Police Court of Nuwara Eliya. On this 22nd day of May,1911,. I, L. E. Halliday, Sufjerintendent ofCondegalleestate, do hereby
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complain that on the 3rd day of March, 1911, at Condegalle estate,within the jurisdiction of this Court, one Kandesamy alias Fonnasamy,■ an Indian agricultural labourer, having been before in the service oremployment as a labourer of the Superintendent of Galatura estate,Ratnapura, did when offering to hire himself as a labourer to me, theSuperintendent of Condegalle estate, falsely and wilfully pretend notto have been hired or retained in any previous employment, capacity,or service as such labourer, and thereby committed an offence punish-able under section 17 of the Ordinance No. 11 of 1865.
* C. W. Babtholombusz,Proctor for the Complainant.
L. E. Halliday.
It appears that the accused entered Mr. Haliiday’s employmentunder the name of Kandesamy on a Ragama certificate, on which itwas stated that he had not previously been employed on any otherestate in Ceylon, and that he was under no unliquidated liability toany other estate. These statements were found to be false. Itappears that the accused up to about February last had beenemployed under the name of Ponnasamy on Galatura estate, andthat he, together with other coolies, had left that estate on notice,leaving behind them a debt of Rs. 7,000.
The accused was convicted in the Police Court of Nuwara Eliyaunder section 17 of Ordinance No. 11 of 1865, and was sentenced toone month’s rigorous imprisonment.
Before dealing with the question of jurisdiction, it is necessary tonotice two other grounds of appeal which have been advanced.
It is said that Mr. Halliday, the Superintendent of Condegalleestate, had no status in Court as complainant, and could not institutethis case. This objection, in my opinion, has no substance.Mr. Halliday, on receiving this cooly from Ragama, was entitledunder “ The Indian Coolies Ordinance, 1909,” to a certificatecontaining a true statement with regard to the man’s previousemployment and liability for estate debts. When Mr. Hallidayreceived a certificate on which these particulars were falsely stated, /he was distinctly aggrieved, and was obviously a proper person toput the law in force against the person who was responsible for thefalse statements.
The other preliminary objection is that it has not been provedthat the accused was in fact the person who gave the false informa-tion, and reliance is placed on the evidence of Mr. Dorysamy, theclerk who filled in the certificate at Ragama, that he could notidentify the accused as .the Kandasamy on whose information hefilled in the particulars in the certificate.
The false information was given by a man who described himselfto the clerk as Kandasamy ; the certificate was given in respect of aman of that name despatched to Condegalle estate ; the accused wasat that time despatched to that estate ; and a certificate relating toa Kandasamy was forwarded to the superintendent, and reachedhim a few days before the arrival of the accused.
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Sept. J, 3911
In the absence of any evidence to the contrary, I think that thePolice Magistrate was justified by the evidence before him in holdingthat the accused was the man on whose information the clerk ofRagama filled up the certificate.
With regard to the question of jurisdiction, it is contended that,as it was at Ragama that the accused falsely pretended not to havebeen employed before on an estate, the offence was not within thelocal jurisdiction of the Police Court of Nuwara Eliya, but shouldhave been tried within the judicial division of Colombo, within whichRagama is situated.
For the respondent it was argued that the offence was a continu-ing'one, and that the false pretence was carried on up to the timeand after the accused reached Condegalle estate.
In my opinion this argument is untenable. The false pretence,in order to constitute an offence under section 17 of Ordinance No. 11of 1865, must be made by the accused “when offering to hirehimself.” But under section 25 (2) of “ The Italian Coolies Ordi-nance, 1909,” the contract of hire and service is complete as soon asthe Superintendent of Ragama has despatched the labourer to theestate and has forwarded the certificate to the employer. Nothing,therefore, that the accused did at Condegalle was done <( whenoffering to hire himself in any employment.” The contract of hireand service was complete as soon as the accused left Ragama andhis certificate was forwarded.
I think the offence was clearly committed at Ragama, where theaccused gave the false information to the clerk, and that the PoliceCourt of Nuwara Eliya had no jurisdiction to try the offence.
The next question is whether, in view of section 423 of the CriminalProcedure Code, this conviction should be set aside. The section isin these terms : “ No judgment of any Criminal Court shall be setaside merely on the ground that the inquiry, trial, or other proceed- •ings in the course of which it was passed took place in a wrong localarea, unless it appears that such error occasioned a failure of justice.”Various grounds were suggested in argument for cutting down theplain and natural meaning of this section. It was said that thesection should only apply when no objection was taken to thejurisdiction in the court of first instance. But there is nothing inthe section or in the context which lends the slightest support tothis suggestion. To engraft such a proviso or exception on thesection would, in my opinion, be an unjustifiable encroachment onthe province of the Legislature. It was also contended that thesection cannot be administered in its natural meaning withoutderogating from the rights of appeal allowed by chapter XXX.of the Code. I confess that I am unable to appreciate the forceor effect of this argument. Nothing is commoner in legislativeenactments than provisions which introduce with regard to someparticular matter exceptions to or modifications of rights previously .
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granted in general terms. Many such instances could be citedfrom the Criminal Procedure Code; the whole of chapter XLII.afor example, is of this character.
If any authority be wanted for the proposition that section 423should be construed according to its plain meaning and as completein itself, I refer to the case of Queen Empress v. Fazl Azim,1 whichwas a decision of the Full Bench of Allahabad on section 532 of theIndian Criminal Procedure Code (corresponding to section 423 ofour Code). In that case a Sessions Judge had heard a criminalappeal at a place at which he was empowered to exercise civil butnot criminal jurisdiction. But for the provision's of section 531his order would have been a nullity.
The Full Court, however, gave full effect'to section 531, and, find-ing that the irregularity had not occasioned any failure of justice,refused to set aside the order of the Sessions Judge.
Under section 423 I am clearly of opinion that it is our duty notto set aside the conviction in the present case on the ground that theproceedings took place in a wrong local area, unless we are satisfiedthat the error occasioned a failure of justice.
There is absolutely no reason for supposing that the accused wasprejudiced in his defence by being tried at Nuwara Eliya rather thanin the judicial division of Colombo. I therefore decline to set asidethe conviction. Having regard to the importance of enforcing theprovisions of the legislation on this subject, I cannot regard thepenalty as excessive.
In view of the difficulties which have arisen in the present caseand of the importance of preventing fraudulent entries in Ragaraacertificates, it seems desirable that the act of giving false informationfor the purpose of these certificates should be made a specific offence;that the Police Court or Courts having jurisdiction to deal with suchoffences and the persons entitled to prosecute should be specified ;and that provision should be made, if possible, for the identificationof the coolies giving the information to the officials at Ragama.
I agree entirely, but would also add that this application of section423 of the Criminal Procedure Code must by no means be consideredto obviate the. requirements of the law that criminal proceedingsshould be originally instituted in the Court having the proper andcompetent local jurisdiction to try and determine the offence, orjtoprevent a Police Magistrate who doubts that he has jurisdiction tohear a case acting under section 145 and applying to the Attorney-General for directions.
1 J. L. R, 17 AUf 37,
Sept. 1, mt
HALLIDAY v. KANDASAMY