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IDROOS v. CASSIM.P. C., Colombo, 50,397.
False and frivolous charge—Complaint to the police—Further prosecution—Ordinance No. 16 of 1865, s. 54—Imprisonment in default ofpayment of fine—Penal Code, ss. 61 and 62.
The provisions of section 54* of the Police Ordinance, 1865, arenot impliedly repealed by those of the Criminal Procedure Codewhich relate to condemning a complainant in Crown costs andcompensation, or by section 180 of the Penal Code ; nor is itnecessary, to enable a Magistrate to punish a person under section54 of the Police Ordinance, for making a false or frivolous chargeto the police, that a separate complaint should be made by thepolice against such person under that section, or that the furtherprosecution of the false or frivolous charge should be at the instanceof the police.
Where a person makes a false or frivolous charge to the police,and then carries the charge himself to Court, the Magistrate, indismissing the charge, may deal with the complainant in the samecase under section 54 of the Police Ordinance.
The period of imprisonment in default of payment of a fineimposed under section 54 of the Police Ordinance must be deter,mined by the provisions of sections 61 and 62 of the Penal Code,andshould not exceed one-fourth of the term which is the maximumfixed for the offence under section 54 of the Ordinance.
T N this case the complainant preferred to the police a chargeof theft against the accused, and thereafter filed a plaint inthe Police Court of Colombo against him for that offence. TheMagistrate dismissed the charge, and found that the complaint tothe police was false and frivolous. He sentenced the complainantto pay a fine of Rs. 50, or to undergo two months’ imprisonmentunder section 54 of Ordinance No. 16 of 18,65. The complainantappealed.
W. Pereira, for appellant.
Cur. adv. vult.
* Section 54 of Ordinance No.l 6 of 1865 : In every case in which any personshall b© given in charge to a police officer on a false or frivolous charge,or in which a false or frivolous charge shall be-made to a police officer againstany person, or in which any information or complaint shall be laid ormadebefore a police officer and shall not be further prosecuted, orin which if furtherprosecuted it shall appear to the magistrate by whom the case is heard thatthere were no sufficient grounds for making the charge, such magistrate shallneve the powerto award afine notexceeding five pounds, or imprisonment fora period not exceeding one m mth, nr both ; or to award such emends notexceeding five pounds, to be paid by the informeror complainant to the partyinformed or complained against for his loss of time and expenses in the matteras to suoh magistrate shall seem fit; and such amends shall be recoverablein the manner provided for the levy of fines.
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14th February, 1898. Withers, J.—
Before addressing myself to the points of law, 1 must point outthat the appellant did not attempt to show cause why he shouldnot be punished for making a false chaige. He called two newwitnesses to support the charge, and they produoed a veryunfavourable impression on the Magistrate’s mind. I must takethe Magistrate’s finding to be a correct one. Even so, Mr. Pereiraargued the conviction was not in accordance With law. Hisclient had been punished for an act made punishable by the 54thsection of the Police Ordinance of 1865, but that section had beenimpliedly, if not expressly, repealed by the Penal Code and theCriminal Procedure Code. On that point I am against Mr. Pereira.The two Codes were passed together, and the schedule of the. Procedure Code only contains a list of repealed laws, Ordinances,and rules of Court.
Several sections of the Police Ordinance of 1865 appear in thelist, but not the 54th seotion, with which we are concerned.
Again, section 4 of the Penal Code enacts that nothing is intendedto repeal, vary, suspend, or affect any of the provisions of anyspecial local law. As section 54 has found no place in the repeal-ing schedule of the Procedure Code, I must take it to be in force.It may be that its provisions were accidentally left to stand, forthey are almost, if not quite, covered by seotion 180 of the PenalCode.
Then it was argued that, before any one can be convicted underthe provisions of section 54 of the Police Ordinance, he must be aparty defendant whom a police officer has prosecuted for makingto him a false or frivolous charge. Here, however, it is the pro-secutor of the alleged thief who is being punished for falselyaccusing the defendant of theft before a police officer. That wouldbe a sound argument if the false information had been carried nofurther, so to speak, than the police station ; but the section in
question enacts that if the false charge shall be further
prosecuted, and it shall then appear to the Magistrate by whomthe case is heard that there were no sufficient grounds for makingcharge, such Magistrate shall have the power to award a fine notexceeding £5.
The case surely means the informant’s case against the accused.
Here the case was further prosecuted, and it appeared to theMagistrate that there were no sufficient grounds for making thecharge, or, to use his language, that the charge was a -false one, andof course he means false to the knowledge of the complainant.
But, admitting all that for argument’ sake, it was still furthercontended that the Magistrate could only impose a fine under23-
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1898. section 54 when the ease is farther prosecuted by the policeFebruary 14. 0fgcer to whom the false charge was made He, the Magistrate,Withers, J. did not act upon the police officer’s report. He accepted the com-plainant’s complaint, and on that issued summons to the accused.Hence he might punish him for a frivolous and vexatiouscomplaint (i.e., to himself) under section 216 of Ordinance No. 22of 1890, but in that case he could impose no fine. He might awardCrown costs or amends. Then I was reminded by counsel of thedecision that this section 216 cannot be put in force when theMagistrate has tried the case on information or report. Hencethe Magistrate was placed in a dilemma from which he could notescape. But seotion 54 of the Police Ordinance says nothingabout the charge being further prosecuted by the police officer.It says, “ if further prosecuted.” If I am to chose between theaccuser and the police officer, I should say the seotion pointed tothe accuser as the proseoutor. I therefore affirm the conviction,but I must modify that part of the sentence which imposes twomonths’ imprisonment in default of payment of the fine.
Section 61 of the Penal Code seems to me to apply to this case.An offence under section 54 of the Police Ordinance may bepunished by fine as well as imprisonment, but the term ofimprisonment is limited to one month. Section 61 of the PenalCode enacts that the term for which the Court directs an offenderto'be imprisoned in default of payment of a fine shall not exceedone-fourth of the term of imprisonment., which is the maximumfixed for the offence if the offence is punishable withimprisonment as well as fine. Hence one week must besubstituted for two months.
IDROOS v. CASSIM