DALTON S.P.J.—van Cuylenbery v. Sellamuttu.
1933Present: Dalton S.P.J.
VAN CUYLENBERG v. SELLAMUTTU.
571—P. C. Colombo, 42,514.
Refusal to answer questions put by Public Servant—Person questioned undersection 122 (2) of the Criminal Procedure—Penal Code, s. 177.
A refusal to answer questions put to a person under the provisions ofsection 122 of the Criminal Procedure Code may form the basis of acharge under section 177 of the Penal Code.
^^PPEAL from a conviction by the Police Magistrate of Colombo.
R. L. Pereira, K.C. (with him H. V. Perera and T. F. C. Roberts), foraccused, appellant.
lllangakoon, S.-G. (with him M. F. S. Pulle, C.C.), for complainant,respondent.
April 12, 1933. Dalton S.P.J.—
The appellant, Nagendra Sellamuttu, was charged with committingan offence under section 177 of the Penal Code, namely, being a personlegally bound under section 122 (2) of the Criminal. Procedure Code toanswer all questions relating to an offence, namely, an offence undersection 298 of the Penal Code relating to the- violent death of one W.Podisingho, put to him by the complainant F. A. van Cuylenberg,Inspector of Police, he did on July 15th, 1932, refuse to answer thefollowing question: “ Did you take Yusoof Caffoor on the 12th night to
DALTON S.P.J.—van Cuylenberg v. Sellamuttu.
Slave Island in your small car? ” put to him by the Inspector, a publicservant in the exercise of his legal powers. The appellant has beenconvicted, sentenced to six months’ simple imprisonment, and nowappeals from that conviction.
The first ground of appeal urged was that a refusal to answer a questionput to a person under the provisions of section 122 of the Criminal Pro-cedure Code cannot form the basis of a charge laid under section 177 ofthe Penal Code, which it was argued had application to judicial proceed-ings only. Mr. Pereira referred me to Samarakkody v. Don James' asbeing an authority for his contention. The facts of that case are not setout, but one is able to gather, I think, from the judgment that theaccused man there, probably a headman, had failed to report a murderto the authorities, a duty required of him by section 22 of the CriminalProcedure Code. The learned Judge (Withers J.) held he could not beconvicted of any offence under section 177 of the Penal Code, there beingno refusal to answer questions put by a public servant. The learnedJudge also held, but it did not seem necessary for the purpose of decidingthe case, that the offence contemplated by section 177 is an offencecommitted during judicial proceedings. He refers to a dictum of Bum-side C.J. in Pulle v. Goonesekere,’ in support of this opinion. I can findnothing, however, in the Criminal Procedure Code (Ordinance No. 3 of1883) in force at the time of this decision similar to the provisions ofChapter XII. of the present Ordinance, and hence the question, as itarises now, would not have required to be considered.
It is to be noted, however, that the opinions expressed on this point inthese two cases are not relied upon in Deheragoda v. Alwis ‘ where a chargewas laid against a person under section 177 for refusing to answer aquestion put to him by a Police officer under the provisions of section 122of the Criminal Procedure Code, exactly as in this appeal now before me.Experienced counsel were engaged in that case, and there was no sugges-tion by counsel or Ennis J. that a charge would not lie under the circum-stances against the accused. Mr. Pereira has failed to satisfy me thatsection 177 does not apply to a person who under section 122 of theCriminal Procedure Code is bound to answer truly questions put to himand refuses to do so.
The next ground urged was that appellant was not legally bound toanswer the question put to him, as being a question which might have atendency to expose him to a criminal charge.
I have already detailed certain of the facts leading up to the incidents outof which this charge arose in my judgment in van Cuylenberg v. Caffoor *Colombo, and it is not necessary to repeat them. The Police were insearch of the driver of the Hillman car X-1078, said to be responsible forthe death of W. Podisingho, and they had cause to suspect it was one offour Caffoor brothers. The appellant is a young man, 20 years of age,described as a business apprentice, and son of a broker, living with hisparents. He states he was educated at the Royal College, where he wasat school with Mohideen Caffoor, with whose brother Yusoof Caffoor hewas also friendly. Inspector van Cuylenberg states that in the course
(1897) 6 Tamhyah's Reports 107.= (1880) 7 S. C. C. 206.
a 16 N. L. R. 233.* 34 N. I,. R. 433.
DALTON SJJ.—van Cuylenberg v. Sellamuttv.
of his inquiries the appellant’s name was mentioned and on July 14th hewent to his house to interview him. He was unable to find him at homeuntil the evening of the 15th. Th interview, according to the evidence,seems to have been very brief. “I asked accused for his name andoccupation, which he answered. “I then asked him 'did you driveYusoof Caffoor to Slave Island in your car on the night of the 12th ?…. Accused replied ‘ I decline to make any statement ’ ”.
The Inspector never explained the position to the appellant or toldhim what he had come about, never told the appellant what he wantedof him apart from this one question, and when he refused to answernever told him, as one would have expected him to do, that according tothe Inspector’s view, he was compelled to answ.er, and that he was com-mitting an offence in refusing to answer. He does state, however, hehad explained on his visit on July 14th to appellant’s father why he hadcome, and what sort of evidence he wanted from appellant.
On July 18th the evidence shows that appellant, having taken legaladvice, went of his own accord to the office of the Superintendent ofPolice and made a full statement to him answering all that was requiredof him. Under these circumstances, having regard to the youth andobvious inexperience of appellant, one may express some surprise atthese proceedings being launched at all. He was nevertheless chargedon July 23rd with refusing to answer the question put to him onJuly 15th, and has been sentenced to six month’s simple imprisonment.Whilst supporting the conviction, the Solicitor-General concedes he cannotunder the circumstances support the sentence passed.
Appellant gives evidence and purports to explain why he refused toanswer the.question put to him on July 15th. He states that YusoofCaffoor came to his home in Rosmead place about 8.15 p.m. on the nightof July 12th with another man and wanted to use his (appellant’s) car. Helent him the car and drove it himself. Yusoof asked him to go to SlaveIsland, where he was stopped at the lane. Yusoof and the other man gotout, went into the lane, and in a few minutes returned with a man whomthe appellant had previously seen driving Yusoof Caffoor’s car. Appel-lant then drove them all to Caffoor Villa where he left them. When hewas questioned by the Inspector in the. evening of July 15th, he had heardthat Yusoof Caffoor’s driver had admitted driving car X—1078 on theevening of July 12th, and also that he had gone back on that statement.He also had heard that allegations were being made against YusoofCaffoor “ and party ” of fabricating false evidence or similar offences.There is no reason at all to doubt his evidence on these two points. Sincehe had driven Yusoof Caffoor that night, although he says he wasconscious of doing nothing wrong, he states he was frightened at the visitof the Inspector, and he was also afraid that he might be incriminated,not necessarily in the motor car case, but for assisting fo fetch a personas the driver, who in fact was not the driver at the time of collision.
The learned Magistrate agrees that if’ appellant had been suddenlyconfronted on July 15th with -this question by the Inspector, there mighthave been some excuse for hip), but he had known from the previous daythat the Inspector was coming and what information he wanted. Hestates, although appellant does not bay so,I that hfe (appellant) was aware
DALTON SJPJ.—wan Cuylenberg v. Sellamuttu.
that the Inspector was coining about the accident alone, and in the lightof subsequent facts that came to his notice before judgment was given,he interprets the question as being one which could not incriminate himon any charge except that of being responsible for the death of W. Podi-singho; he does not, however, deal with appellant’s statement that hefeared he might possibly be incriminated on another charge, i.e., offabricating false evidence, apart from merely mentioning it. He comes tothe conclusion that the real reason why appellant refused to answerthe question was not for fear of incriminating himself, but for fear ofincriminating Yusoof Caffoor on a charge of driving the car that causedthe death of the man. An examination of appellant’s evidence does notshow that any such suggestion for his refusal was made to him. Indealing with the effect of his refusal on July 15th and delaying to give theinformation until July 18 as a result of which the learned Magistrate saysyery precious time was lost to the Police in obtaining this information,he has overlooked the fact that the Inspector admitted that he hadevidence from others before he went to appellant at all that appellanthad driven Yusoof to Slave Island on the night of July 12th.
I have set out the law applicable in my judgment in van Cuylenburgv. Caffoor (supra). I can see no sufficient reason why the evidence ofappellant as to his state of mind on July 15th, when questioned by theInspector, should not be accepted. That there could be no reasonable fearin his mind that he might be incriminated in the motor case I agree, butI see no reason to disbelieve his statement that he felt he was personally indanger from having driven Yusoof Caffoor on the errand to Slave Islandto fetch his own driver, which conduct might result in other chargesagainst Yusoof Caffoor as well as himself. It seems to me to be underthe circumstances not an unreasonable one in the case of a frightenedyouth. Was there something here beyond a bare possibility of legalperil ? I think there was, and in that event on the authorities consider-able latitude must be allowed to appellant in judging of the effect of thequestion put to him. The priviledge would, as has been stated, be worth-less if the person questioned was required at the time to point out howthe answers to questions put would tend to incrimate him.
The fact that on July 18th he went to the Superintendent of Police andvolunteered all the information that was required of him, after legaladvice had been taken on his behalf, and before the arrest of YusoofCaffoor, is in the circumstances here inconsistent, in my opinion, withany suggestion of complicity between appellant and Yusoof Caffoorsuch as the learned Magistrate seems to think existed. It seems to me tobe the natural sequence after reflection on the prior refusal of an alarmedand frightened youth, who probably never had anything to do with thePolice before.
For these reasons I would hold that the question was not one which,under the circumstances, appellant was legally bound to answer, and thisground of appeal must be answered in his favour. The appeal is allowedand the conviction quashed.
VAN CUYLENBERG v. SELLAMUTTU