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ANDRIS v. JUANIS et al.
P. C., OaUe, 20,984.
“ The Oaths Ordinance, 189 s. 12, clause 1—Prompt punishment for
perjury—Procedure to he adopted—Scope of the Ordinance.
Clause 1 of section 12 of Ordinance No. 9 of 1895 gives power to 'Courts, if they are of opinion that false evidence within the meaningof section '188 of the Ceylon Penal Code has been given by anywitness, to summarily punish him as for a contempt of court. Butthis power must be exercised in accordance with established legal.principles, and a witness, before he is punished under this section,must be informed'of the facts constituting his offence, and given anopportunity .of explanation.
Per Bohseb, C.J.—Punishment under clause 1 of section 12 ofOrdinance No. 9 of 1895 should only be used in cases where it is clearon the face of the proceedings that witnesses have been guilty ofwilfully giving false evidence, not in cases where there is a conflictof testimony. In the latter class of cases Magistrates will do well toexercise one of the alternative courses open to them under section12.*
Observations by Lawwe, J., on the inexpediency of the changein the law as to punishment for perjury effected by Ordinance No. 9of 1895.
HE facts of the case sufficiently appear in the judgment ofBonseb, C.J.<
Van Langenberg, for appellant.
Bawa, for respondent.
Cur. adv. vult.
26th June, 1896. Bonsek, C.J.—
This appeal came before me originally sitting alone, but inasmuchas this was the first case in which an order made under section 12 ofthe Ordinance No. 9 of 1895 had come before this Court, I reservedthe case to be heard before the Full Court, being of opinion that itwas desirable that an authoritative ruling should be issued by thisCourt for the guidance of District Judges and Magistrates in theexercise of the powers given by that section.*
* Section 12, clause 4 : “In lieu ofexercising the^power given by thissection, the Coupt may, if it thinksfit, transmit the record of thejudicial proceeding to theAttorney-General to enable him toexercise the powers conferred on
•him by ‘ The Criminal ProcedureCode, 1883,’ or proceed in mannerprovided by section 443 of ‘ TheCriminal Procedure Code, 1883,’or by section 835 of ‘ The CivilProcedure Code, 1889.’ ”
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It appears that two of the appellants brought a charge againstcertain* men of having assaulted them and robbed them of somemoney. The Police Magistrate, after hearing the evidence of thesetwo appellants and of third appellant, a local Police Officer, whogave evidence in support of the charge, and after hearing someevidence on behalf of the accused, stopped the case and dischargedthe accused, giving his reasons in the following words :—
“ It is unnecessary to record further evidence for the defence“There was a quarrel in connection with a debt for milk, and“ blows were exchanged.' Police Officer of Labuduwaj complainant’s,“uncle, came to the spot, and this false charge of robbery was“ hastily concocted, but fortunately there was no time to arrange“ details and drill the witnesses. The following are some salient‘‘points which show the falseness of the evidence. Complainant“says the Police Officer came to him when he was working with“ other coolies on the top of a hill and gave him the notes to change;
his brother Hendrick never worked on the estate, and was not“ there yesterday; no trade in milk was ever carried on by his“ father; he was within sightof Hendrick when the latter was robbed.
“ Police Officer of Labuduwa gave complainant the notes at the“ store after all work was over, and did not go up the hill at all. .“ Hendrick never worked on the estate.
“ Hendrick says he has worked on this estate for the last six“ months; worked there in complainant’s gang yesterday; saw“ Police Officer.of Labuduwa come up the hill and speak about the“ money, and afterwards give the notes to the complainant at the“store; he (Hendrick) then left a little before the complainant,,“and complainant was not in sight when he (Hendrick) was“ attacked. Accused discharged.’’
The Magistrate then proceeded without more to fine the appellantsRs. 50, and made the following entry in the record :—“ In my“ opinion these three witnesses have all given false evidence, in“ open Court in this judicial proceeding, and I sentence them each“ (K. V. Andris, K. V. Hendrick, J. Comelis de Silva, Police Officer)“ to pay a fine of Rs. 50, in default to undergo one month’s rigorous“imprisonment each. Section 12, clause 1, of Ordinance No. 9 of“ 1895.’’
The section under which this order was made was intended toprovide a prompt punishment for the perjury which is unfortu-nately so rife in our Courts. It ft an axiom in pcenology, that alight punishment following with certainty close upon the offenceis far more efficacious than the mere chance of a much heavier
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189®- punishment which may never be inflicted. Experience has shown^ond 24prosecutions for perjury are so rare and so seldom successful
' that the risk of punishment may safely be disregarded by any one
Sonskr, C. J- who is minded to commit the offence. This section gives power toCourts, if they are of opinion that false evidence within the meaningof section 188 of the Ceylon Penal Code has been given by any witness,to summarily punish him as for a contempt of court—the punish-ment in the case of a Police Court being by fine not exceeding Rs. 50,and in default of payment rigorous imprisonment extending to twomonths. But this power must be exercised in accordance withestablished legal principles. It is an elementary principle of justicethat no man is to be condemned unheard ; in other words, no manis to be punished for a criminal offence without a distinct statementof the facts alleged against him as constituting that offence, and anoffer to hear what he has to say. The most summary method ofpunishment with which I am acquainted is that used in cases ofcontempt of a Superior Court committed in the face of the Court;but even in a case of that kind it was held by the Privy Councilthat an order was bad which did not satisfy the conditions I havejust mentioned (re Pollard L. R. 2 P. C. 106).
In the present case these men were fined without its being first•stated to them what the facts were which constituted the offence,and without giving them an opportunity of explanation.
Such ati order cannot possibly stand.
The order will be quashed, and the Magistrate directed to sendthe record to the Attorney-General.
I would add that in my opinion this summary procedure shouldonly be used in cases where it is clear on the face of the proceedingsthat witnesses have been guilty of wilfully giving false evidence,not in cases where there is a conflict of testimony. In the latterclass of cases Magistrates will do well to exercise one of the alter-native courses open to them under section 12 of the Ordinance.
By the Penal Code it is enacted that “ every person shfa.ll be“ liable to punishment under the Code, and not otherwise, for“ every act or omission contrary to the pro virions thereof of“ which he shall be guilty within this colony after , the Code■“ comes into operation.” The Penal Code in chapter XI. speciallydeals with the crime of giving false evidence. To the SupremeCourt is given exclusive jurisdiction to' try some forms of falseevidence, and to the District Court to try other kinds of false
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evidence. The judgments are severe: death, ten yean, and sevenyean. tNojurisdiotionis given to the Police Courts to toy perjury. Itis contended that by “ The Oaths Ordinance, 1895,” the law as to thepunishment of perjury has been entirely changed. Perjury of thegravest kind (it is said) may now be punished by Civil or CriminalCourt by the small fine of Rs. 50 or by imprisonment not exceedingtwo months, and the same section enacts that any person who hasundergone any sentence of imprisonment or fine imposed underthis section shall not be liable to be punished again for the sameoffence. I am assured that this change in. the law was deliberatelyintended. I can only express surprise and regret'at the change ofthe law for the worse. Here are two Ordinances both in operation :the one (our established Penal Code) makes perjury a heinous offence,and the other (the Oaths Ordinance) makes it a very trivial one.It is left entirely to the discretion of a Judge or a Magistrate howperjury shall be punished. If a small fine is imposed, there is noappeal even at the instance of the Attorney-General, and perjurers,if they are wise, will never appeal when they have been dealt withunder the Oaths Ordinance, lest a worse fate befall them. In thepresent case the accused had a .proctor, who has incautiouslyappealed, and it is open to this Court to set aside the sentence andto do justice. The Police Magistrate was of opinion that theseappellants gave false evidence to sepure the conviction for robbery-of an innocent man. This serious perjury cannot adequately bepunished by a Police Magistrate by a small fine, nor indeed can soserious an offence be summarily dealt with without a trial. Forthis reason I approve of the order being set aside, and the recordbeing sent to the Attorney-General. Some venial cases of givingfalse evidence in civil and in summary criminal cases may perhaps,without impropriety, be punished “ as for a contempt of Court ” assection 12 of the Oaths Ordinance says. In such cases the Judgemust follow the course laid down by Phear, C.J., following the PrivyCouncil judgment in rc Pollard (2 S. C. C. S). If the Legislaturehas given District Court Judges and Commissioners of Bequests andMagistrates power to punish perjury summarily without trial by afine not exceeding Rs. 50 or by imprisonment for not less than twomonths, I am humbly of opinion that the Oaths Ordinance oughtto be repealed, or at least amended.
I agree in the order pronounced by the Chief Justice. Becausethe Oaths Act empowers a Judge summarily to sentence or fine,
as for contempt of Court, a witness, who in that Judge’s opinionhas giveif false evidence before him within the meaning of section188 of the Ceylon Penal Code, it does not follow that the judge is todispense with elementary ahd fundamental principles of justice.Justice requires that before sentence is pronounced the witnessshall be informed what false statement he has made which the Judgeconsiders deserving of prompt punishment, and should be asked' toexplain, if he can, his conduct in making that statement. Jt maybe that his answer will satisfy the Judge, and then the suspended.sword will not fall.