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THE KING v. DIAS.
D. G„ Colombo, 75,706.
False evidence—Penal Code, e. 190—Contradictory statements—Alternative countin indictment—Criminal Procedure Code, 1883, s. 509, and form ofindictment at p. 368—Criminal Procedure Code, 1898, s. 489 (2).
The Criminal Procedure Code oi 1898 nowhere provides that, in. aprosecutionfor intentionally giving false evidence undersection190of
the PenalCode the Attorney-General maypresent tothe Courtan
indictmentsetting forth two irreconcilablestatementsmadebyan
accused person, and averring in such indictment that one of such state-ments theprisoner either knew or believed-to be false, ordidnot
believe to be true.
An indictment for breach of that section must aver that the accusedintentionally gave false evidence by knowingly and falsely stating some-thing which he knew or believed to be false, or did not believe to betrue, and that he thereby committed an offence punishable under section190 of the Penal Code.
HE accused was convicted for an offence punishable undersection 190 of the. Penal Code, in that on the 24th March, 1902,
in the course of an inquiry into case No. 74,945 in the PoliceCourt of Colombo, he stated to.the Magistrate in evidence, “Thefirst accused Anthony came back with an open knife in hand, andwithout a word he stabbed the complainant. I saw him draw theknife from his waist and open it;’’ and that on the 7th August, 1902,in the course of the trial of case No. 441 of the District Court ofColombo he stated to the District Judge in evidence, " I did notsee an open knife in the first accused’s (Anthony’s) hand as I toldthe Magistrate. I did not see him come with an open knife, nordid I see him stab.’’
The District Judge (Mr. N. E. Cooke) found the accused guiltyand sentenced him to six months’ rigorous imprisonment, holdingthat the two statements set out in the indictment were so con-tradictory and irreconcilable that one of them must be false and. intentionally spoken. .
The accused appealed..
Domhorst, K.C. (with him Van Langenberg), for appellant,and Rimanathan, S.-O., for the Crown, were heard on 24thJuly, 1902.
In view of the doubt entertained by the presiding Judge as to'the soundness of the judgment of the Supreme Court, pronouncedin Reg. v. Jasik Appu (4 N. L. R. 18), in which Browne, A.J.held that, where two statements were so irreconcilable that one or
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the other must be necessarily false, it was needless to offer anyevidence to negative either statement, the case was ordered to beput on for argument before the Collective Court.
On 18th May, 1903, the case was taken up before Layard, C.J.,Middleton, J., and Grenier, A.J.
Domhorst, K.C., and Van Langenberg, for appellant.—The formof the indictment adopted in the present case is taken from page 368of the Criminal Procedure Code of 1883. Such a form was sanctionedby section 509 of that Code, but that Code has been repealed by thepresent Code of 1898, and this form of indictment does not appearin it. It has been repealed. Nevertheless Browne, A.J., in Reg. v.Jasik Appu (4 N. L. R. 18), saw no objection to its use at presentTTib reason was that it had been approved in India and followedby Lawrie, J. But all Indian decisions are founded on the formsanctioned by schedule V. of the Indian Code. Starling’s IndianCriminal Law, chap. XI. p. 234 (Sixth Edition). As that formcopied into our Code of 1883 has been repealed by the Code of1898, the decision of Browne, A.J., is not according to law, andshould not guide the decision of this case. In section 439 (2) ofthe Code it is specially provided that in the case of the SupremeCourt only it shall not be necessary to prove which of thecontradictory statements alleged is fake. That section does notapply to District Courts. Queen v. Podinaide (I Browne, 99). Ifthe Supreme Court accepts this contention, it will not be necessaryto go into the second question raised in the Court below, viz.,whether the District Judge was right in allowing a witness torefresh his memory by the notes of the evidence, interpreted byhim to the Court and recorded by it.
Layabd, C.J., called upon the Solicitor-General for the res-pondent.
Rdmandthan, 8.-G.—The form of the indictment containingalternative statements is no doubt omitted in the Code of 1898, butit was not expressly repealed, nor is its use prohibited. There wereforty-six forms in the Code of 1883, but the Code of 1898 has onlyfourteen forms. Nevertheless many of the old forms are still in use,because they are necessary forms. Section 439 of the present Codemerely re-enacts the provision, contained in section 19 of theOrdinance No. 1 of 1888. The power of the Supreme Court to trya witness who has contradicted the evidence previously given byhim at an inquiry before the Magistrate, upon an indictment inthe- form (4) contained in schedule HI- of the Code of 1883, wassomething additional to the power given by the Code to theSupreme Court and the District Court to try such cases upon
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1903. commitment in regular form. When the Code of 1898 re-enacted•May 18. this procedure, it stated that “at such trial it shall be sufficient toprove that the accused made the contradictory statements alleged,’’&o. -These words do not mean that a special form of proof hasbeen introduced in the Supreme Court. The Law of Evidence isthe same for all Courts which have power to try cases of falseevidence. Section 190 defines false evidence to be making anystatement on oath or affirmation which one knows or believes tobe false or does not believe to be true. Proof of such knowledge orbelief is possible by direct or circumstantial evidence. If a personsays now “ I saw A stab B, ” and afterwards “ I did not see A stabB, ” these statements are irreconcilably contradictory, and of them-selves show that the person who made tixem knew, or believed, that6ne of them was false. The requirements of the definition of falseevidence are fully answered by such evidence. [Layard, C.J.—Ifso, why did the Code of 1898 enact in Section 439, “ it shall besufficient to prove that the accused made the contradictory state-ments,’’ &c.?] Those words are unnecessary; they are words ofsupererogation. There is nothing in the Law of Procedure toprevent the Attorney-General from presenting an indiet-mantfor giving false evidence; nothing to prevent him from settingforth in the indictment the special manner in which the falseevidence was given; and nothing in the Law of Evidence to preventhim from proving the offence of false evidence by direct orcircumstantial evidence, such as the particular case admits of.
18th May, 1903. Layard, C.J.—
The indictment in this prosecution is. for an offence againstsection 190 of the Ceylon Penal Code. It is drawn in the alter-native form which was originally prescribed by section 509 of theCriminal Procedure Code of 1883 and the schedule attached tothat Code. It has been held by this Court, that in view of section509 of the old Procedure Code and section 4 of that Code, suchah indictment was good. I have grave doubts as to whether thosedecisions were correct. They were decisions of single Judgesonly, and not of a Full Court; and had it been necessary in thisappeal to review those decisions, .1 would have felt myself boundto hold that those judgments were not correct, even though it isalleged that they are supported by judgments of the IndianCourts. However, for purposes of my judgment, it is not neces-sary to take into consideration the judgments that were given bythis Court .prior to the passing of the Criminal Procedure Coderow in force, for these decisions were based on the provisions ofthe Criminal Procedure Code of 1883, which were repealed by the
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Ordinance No. 15 of 1898. The Ordinance No. 15 of 1898 nowhereprovides that in a prosecution for intentionally giving falseevidence under section 190 of the Penal Code, the Attorney-General may present to the Court an indictment setting forth twoirreconcilable statements made by an accused person, and averringin such indictment that one of such statements the prisoner eitherknew or believed to be false, or did not believe to be true. Anindictment for breach of that section must aver that the accusedintentionally gave false evidence by knowingly and falsely statingsomething which he knew or believed to be falBe, or did notbelieve to be true, and that he thereby committed an offencepunishable under section 190 of the Penal Code.
There is no' provision in the present Criminal Procedure Codefor an indictment under section 190 of . the Penal Code in thealternative, except that section 489 of that Code provides that “ Ifin the course of a trial by jury before the Supreme Court anywitness shall on any material point contradict either expressly orby necessary implication the evidence previously given by himat the inquiry before the Police Magistrate, it shall be lawful forthe presiding Judge, upon the conclusion of such trial, to havesuch witness arraigned and tried by the same jury on an indict-ment for intentionally giving false evidence in a stage of ajudicial proceeding, which indictment shall be prepared andsigned by a Registrar,” and that section further enacts that whensuch indictment has been presented and the prisoner has pleadedthereto, ‘‘ it shall be sufficient to prove that the accused made thecontradictory statements alleged in the indictment, and it shallnot be necessary to prove which of such ^statements is false.” Icannot remember, and the Solicitor-General has not referred meto any provisions of our Statute Law in which it is laid down thata person can be charged by the Attorney-General in the alternativeas has been done in this case, or that being so charged simpleproof that he made the contradictory statements laid in theindictment would be sufficient to enable the Court before whichhe was tried to convict him of an offence under section 190 of ourPenal Code.
My attention has been drawn to a judgment of Mr. Browne,when acting as a Judge of this Court,- in which he held that anindictment in the form of the one now before the Court wasgood. Mr. Browne, in the case of the Beg. v. Jasik Appu (4
N.L. B. 19), merely states that he relies on this form becauseit had been approved in India; but this form was approved inIndia under certain provisions of the law which are not in existenceat the present time in this Colony. But even if Indian Courts
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1903. had expressly adjudicated on the law as it exists at this time inMay IS. Ceylon, I would not consider myself bound to follow those deci-t.avasd.OJ. sions unless they appeared to me to be manifestly sound.
In my opinion the indictment in this case must be quashedand the prisoner discharged.
I agree with my lord that this indictment is not a good one.False evidence by way of contradictory statements is to my minda form of offence which is not contemplated by the Penal Code.
It is a specific form of offence that the Legislature first providedfor in section 9 of Ordinance No. 1 of 1888.
It has been held by learned Judges in this Court that by virtueof section 4 of the Criminal Procedure Code of 1883, as read withsection 509 of the same Code, there was power to try offences undersection 19 of the Ordinance No. 1 of 1888 before a District Court. Iu•my opinion, Ordinance No. 1 of 1888 creates a specific form ofoffence coming before a special Court and under special circum-stances, and to be tried only under and according to the provisions ofthe section constituting it.. In my opinion, it creates no offence underthe meaning of the words in section 4 of the Code of 1883, whichcould be tried according to the form in the schedule of the Ordi-nance of 1883. Now, all this legislation in Ordinances Nos. 1 of1888 and 3 of 1883 has been entirely repealed. The only thingremaining is the Criminal Procedure Code of 1898. Undersection 439 of that Code the form of offence of perjury or falseevidence by contradictory statements is provided for, and thepower of dealing with it is given under certain restrictions tothe Supreme Court. That section enacts: “If in the course ofa trial by jury before the Supreme Court any witness shall on anymaterial point contradict either expressly or by necessary impli-cation the evidence previously given by him at the inquiry beforethe Police Magistrate, it shall be lawful for the presiding Judge,upon the conclusion of such “trial, to have such witness arraignedand tried by the same jury on an indictment for intentionallygiving false evidence in a stage of a judicial proceeding, whichindictment shall be,prepared and signed by the Begistrar. ’!
The sub-section (2) goes on to give power to dispense with theordinary proof of false evidence, and section 3 gives a power ofadjournment before another jury.
As regards the Solicitor-General’s argument as to inferentialperjury by making contradictory statements, it has been urgedrepeatedly In numerous cases. It is an argument, however, whichis not sustainable. If it were, there Would have been no necessity
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for the legislation which has occurred in India, Ceylon,. StraitsSettlements, Cyprus, and other places.
In my opinion an indictment which alleges contradictory state-ments before two Magistrates is not triable by a District Court; it isnot the offence contemplated either in section 439 or in the oldCode. The offence which is triable by the Supreme Court undersection 439 is false evidence constituted by statements made beforethe Supreme Court, which are contradictory in any material pointeither expressly or by necessary implication to the evidencepreviously given before the Magistrate; but here, the conflictingstatements alleged to be made were made before two Magistrates,and I take it we must in all cases construe the Criminal Lawstrictly.
This is a form of indictment which is not warranted, and shouldbe quashed.
I am of the same opinion. There is scarcely anything I can addto what has fallen from my lord and my brother Middleton.
. May 18.
THE KING v. DIAS