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Present: Wood Benton G.J. and Ennis and De Sampayo JJ.
SEABINNO v. MUTTUSAMY.732—P. C. Negombo, 27,427.
False charge—Is • it vexatious ?—Quitting service without notice—Is the
charge frivolous t—Criminal Procedure Code,ss.197,439, and
Every false case is not necessarily vexations. But it the factsconstituting the charge are deposed to by the complainant as fromhis personal knowledge, and the charge turns out to be false, andto havebeen madewiththe deliberate intention,not merelyof
punishingthe accused,butofharassing him, theproceedingsare
vexations within the meaning of section 197 (1) of the CriminalProcedure Code.
Ennis J.—That a false charge may be vexatious there can beno doubt, hut it is not desirable that a Magistrate should use theprovisions of section 197(1) of the Criminal Procedure Code when
he comes tothe conclusionthat a charge is false. Theproper
procedurewhere a chargeisbrought and particulars swomto
which are false to the lcnowldge of the complainant, is expressly provided insections 489 and 440.
Wherean employerchargeda labourer, undersection 11'of
Ordinance No.11 of 1866,with having quitted servicewithout
Held, .that the charge was not a “ frivolous " one within themeaning of section 197 (1) of the Criminal Procedure Code.
“ The alleged offence is one for, which the Legislature has provideda substantial punishment."
HE facts areset out in thejudgment. This case wasreferred
to a Benchof three Judgesby De Sampayo J.
J. 8. Jayawardene, for the appellant.—The charge against theappellant is clearly not frivolous. A frivolous charge is one whichcomplains of a slight injury (2 Tambyah 58). The Legislature has
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provided a substantial punishment for a charge of quitting servicewithout leave. The mere falsity of a charge is not sufficient toregard it as vexatious (2 0. A. G. 173). “ Vexatious ” must be readas ejusdem generis with “ frivolous ” (9 Gr. L. J. 255). In a falsecase there is a criminal action for perjury.
Counsel also relied on 5 N. L. R. 17, 1 Broume 34, and -5 Bal.N. G. 94.
Gur. adi). vult.
October 2, 1917. Wood Kenton C.J.—
This case has been referred by my brother De Sampayo to a Benchof. three Judges for the consideration of a point of law which ariseson the following facts. The appellant charged the accused withhaving quitted his service without notice, in contravention of theprovisions of section 11 of Ordinance No. 11 of 1865, as amended bysection 2 of Ordinance No. 16 of 1905. The Police Magistrate heard'the evidence of the complainant on the one side, and that of theaccused on the other. He then acquitted the accused, and made anordSr, under section 197 (1) of the Criminal Procedure Code, requiringthe complainant to pay Ks. 5 as Crown costs. The complainantappeals.
The view of the learned Police Magistrate was that the charge-was a “ frivolous ” one within the meaning of section 197 (1) of theCode of Criminal Procedure. I entirely agree with the view taken,as I understand, by my brother De Sampayo at the original argumentof the appeal before him, that the decision of the learned PoliceMagistrate cannot be supported on that ground. The charge wasnot frivolous. The alleged offence is one for which the Legislaturehas provided a substantial punishment. There Remains, however,the question whether the charge might not fairly be held to have'been “ vexatious ”, within the meaning of the same enactment. Mybrother, has referred this question to a Bench of three Judges, inview of the fact that in certain local and Indian decisions thefalsity of a charge has been held not to afford a good ground for theapplication of the summary remedy. created by section 197 ' (1) ofthe Criminal Procedure Code and similar legislation. '.The ratiodecidendi of these cases is that here, as elsewhere, the Legislaturehas made special and independent provision for the punishment ofrbringing a false and malicious charge. I do not propose to discussthese authorities in detail. It appears to me that the questionmust, in every case, resolve itself into one of faqt. The merecircumstance that a charge is false might well afford no reason forregarding it as “ vexatious ”. The person who made the chargemight believe it, and there might be nothing in the case to show anyintention to harass the person accused. But, on the other hand,the circumstances might be quite different. Let us suppose -that aman brings a charge which he knows to be false, and the collapse
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of which at the hearing he must be aware is more , than probable,against an old cripple living at a considerable distance from the.Court by which that charge will have to be inquired into. Is itdesirable that we should, by laying down hard and fast generalrules, prevent a Police Magistrate in such circumstances as thesefrom drawing the very reasonable inference that the complainant’sobject was not to secure the conviction of his opponent, but to putthe latter to as much trouble as possible "before he obtained hisinevitable acquittal? To that question there can, in my opinion,be but one answer, and that is an answer in the negative. I havealways been strongly averse from interpreting such wholesomeprovisions as are contained in sections 197 (1) and 440 of theCriminal Procedure Code in a narrow sense. It is well settled—seeBeg. v. Silva1 and 13, D. C. (Crim.) Chilaw, No. 3,200*—that theimposition of costs under the former of these sections is not a con-viction of an “ offence ” so as to justify a plea of autrefois convictto a prosecution under section 208 of the Penal Code. The summarypunishment of the bringing of false and vexatious charges is mostsalutary. It is immediate and certain. People of the type uponwhom its infliction is necessary are never eager to part with even afew rupees. But what they resent most of all is the public exposurethat has overtaken them.
Wood .Rbnton C. J.
. Seorirmo n.Muttusamg
In the present case the learned Police Magistrate has recordedfindings from which an inference that the false charge made by thecomplainant against the accused was vexatious is not unreasonable,and 1 would affirm his judgment on that ground.
That a false charge may be vexatious there can be no doubt, but,in my opinion, it is not desirable that a Magistrate should use theprovisions of section 197 (1) of the Criminal Procedure Code whenhe comes to the conclusion that a charge is “ false ”. The properprocedure, where a charge is brought and particulars sworn towhich are false to the knowledge of the complainant, is expresslyprovided for in the Criminal Procedure Code, sections 439 and 440,respecting the giving of false evidence (in the absence of anyevidence the Court is not in a position to say that a charge is“ false- ”). The procedure under these sections is no less expeditiousthan the procedure under section 197 (1), and the fact that a specialprocedure has been provided to meet the case of a charge which is“ false " as distinct from being merely “ vexatious.” indicates, inmy opinion, an intention that this procedure should be followedrather than the procedure for the punishment of the lesser offencedealt with in section 197.
1 (1901) S N. L. B. 17.
8S. C. M., Jan. 25, 1916.
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There is no appeal from an order under section 197 for the pay-ment of Crown costs, and the fact that a right' of appeal has been,recognized shows that the order, where a case is found to be “ false,should have been made under another section.
In the circumstances of the present case I see no reason tointerfere, and would dismiss the appeal.
De Sampayo J.—
This is an appeal from an order of the Police Magistrate, undersection 197 (1) of the Criminal Procedure Code, condemning thecomplainant to pay Rs. 5 as Crown costs. Section 198 expresslydisallows any appeal from such an order. This Court, however, hasrecognized the right of appeal where the proceedings have beenso irregular that the order cannot be said to have been duly made.Nonis v. Tamely In this case the complainant was called upon toshow cause, and the proceedings are otherwise regular. The appealmay, however, be dealt with as a matter in revision.
The complainant, who is superintendent of Katukenda estate,charged the accused, a cooly employed on the estate, with havingquitted service without notice and without reasonable cause. ThePolice Magistrate found on the evidence, that the accused had given,a month’s notice, and, further, had good cause to leave, as his wageshad not been paid, and he disbelieved the complainant- on boththese points.He held that the charge was wholly false, and
acquitted the accused. The complainant was then dealt withunder section 197 (1), on the ground that the charge was frivolous,It is clear, however, that the charge was not frivolous, though itmight be vexatious. But as there was some difference^ of judicialopinion as to whether a false charge was. vexatious . within themeaning of section 197 (1) of the Criminal Procedure Code (see, forexample, Peris v. Valentine 2 and Velupillai v. Casipillai 3); and ascases involving the same point frequently came up, I thought itright to refer this case to a Bench of three Judges, in order that thequestion might be settled.
It is undoubtedly true that every false case is not necessarilyvexatious. The complainant may prefer the charge on the informa-tion of others, and the falsity of the charge may not for that or somepther reason be known to him, and the charge may be made, not withthe intention of harassing the accused, but with a view to justice.Jn such cases the complainant will hardly be guilty of vexatiousprosecution. But if the facts constituting the charge are deposedto by the complainant as from his personal knowledge, and the chargeturns out to be false, and is shown to have been made with the deli-berate intention, not merely of punishing the accused, but of harassing
1 (1914) 17 y. L. R. 265.2 (1912) 2 C. A. C. 173.
3 (1912) 15 N. L. R. 332. , .
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•him, 1 think the proceedings are vexatious in every sense of theword, and are within the statutory provision of section 197 (1).In the present case the findings of the Police Magistrate on the maincharge and the observations in his judgment show that this is a caseof the latter class. It is desirable that when a Magistrate dealswith a complainant in similar circumstances he should bearthe above distinction in mind, and specifically find the facts necessaryto support his order.
1 would, therefore, affirm the order of the Magistrate as one madeon the ground that the complaint was vexatious.
SEARINNO v. MUTTUSAMY