120-NLR-NLR-V-24-APPUHAMY-v.-SIDDAPPU.pdf
( a* >IMS.Present : Ennis J.
APPUHAMY v. SIDDAPPU.
528—P. C. Matale, 18,445.
False information topublicservant—Penal Code, ss. ISOand 808—
Higher offencedisclosed in complaint—Proceedingstakenfor –
lower offence.
Where a complaint discloses a primd facie case of a higher offence,it is not. right for a Magistrate to take proceedings for a loweroffence.
Accused gave false information to a Korala that another personhad caused hurt to him, knowing such information to be false,and intending to cause the Korala to use his lawful power tothe injury or annoyance of such other person. The Magistrateconvicted accusedundersection 180 of the PenalCode.The
Supreme Court set aside the conviction, and sent the case fornon-summary proceedings under section 206 of the Penal Code.
“ Although a Korala is not a public servant directly concerned:in the institution of criminal proceedings, he has the power to-present a complaint tothe Court under section 148(6) ofthe
Criminal' Procedure Code, which means that he has the power toinstitute proceedings. ”
Jay as mg he v, Siyadoris Appu1 and Seraph v. Kandyah2 con-sidered.
THE facts appear from the judgment.
Sohokman, for the appellant.—The accused has committed nooffence under section 180 of the Penal Code, since he charged adefinite person in his complaint to the Korala, and after obtaininga report from the latter he instituted criminal proceedings in theVillage Tribunal. Section 208 makes special provision for a falsecharge, while the illustrations to section 180 show that the infor-mation referred to in the section1 is not that relating to the com-mission of an offence. The charge cannot be altered in appeal,since section 108 is, end section 208 is not, triable by a PoliceMagistrate summarily.
Counsel cited 13 N. L. R. 10 and 9 and (1913) 15 Bom. L. R. 574.
Vythilmgam, C. C., for the Crown.—The information referredto in section 180 may be of any description. Though proceedingsin this case could have been taken under section 208, which is a- more serious offence, there is no reason why a conviction undersection 180, a lower offence, should not be maintained-
* (1909) 13 N. L. R. 9.• (1903) 13 N. L. R. 10.
( 395 )
October 27, 1922. Ennis J.—1M8.
This is an appeal from a conviction under section 180 of thePenal Code. The complainant was a Korala and he complainedthat the accused had given him false information that one AppuSingho had voluntarily caused hurt to him by striking him with astone on his head, and he asserted that the accused knew that thisinformation was false and intended to cause the complainant touse his lawful power to the injury or annoyance of the said AppuSingho. There is no appeal on the facts, but a point of law hasbeen urged, that the Magistrate should not have taken summaryproceedings for the trial of an offence under section 180, becausethe facts set out in the complaint disclosed an offence under section208 of the Code, which was triable by a higher Court. The com-plaint does seem to assert a prima facie case of an offence undersection 208. Although the Korala is not a public servant directlyconcerned in the institution of criminal proceedings, he has thepower to present a complaint to the Court under section 148(6)
of the Code of Criminal Procedure, which means that he has thepower to institute proceedings. Two cases have been cited by theappellant in support of his contention. The first of these .isJayasinghe v. Siyadoris Appu.1 In that case – the Court agreedwith the decision in a previous case and acted upon it. Theprevious case has been reported on page 10 of the same volume offreports. It is the case of Serapah v. Kandyah. 2 In that caseLayard C.J., held that the appellant had not committed an offenceunder section 180, because an offence had been disclosed undersection 208, but, holding that he could not himself convict himunder section 208, as he was not in a position to do so, he acquittedthe accused. The decision in that case followed some Indiandecision which was not cited. Mr. Sehokman, for the appellanthas been unable to find any reported Indian decision to thiseffect. But in the Digest he has found a reference to an Indiancase, the report of which is not in the Library, where it was heldthat where a matter comes fairly under the provisions of section211 of the Indian Code, which is equivalent to our section 208,and where a sanction is needed in order that a prosecution mayproceed under that section, to proceed without any such sanctionunder section 182, equivalent to our section 180, is to evade thesalutary provisions of the law. So that in the present instanceno proper authority in support of the Ceylon cases has been citedto me, and the matter has been further complicated by an appear-ance on behalf of the Attorney-General as respondent to theappeal. I propose to follow the general rule of the Court, and saythat where a complaint discloses a prima facie case of a higheroffence, it is not right for the Magistrate to take proceedings fora lesser offence. Without, therefore, going in any way into the1 (1909) 13 N. L. Jft. 9.» (1905) 13 N. L. J?. 10.
( 396)
1988. facts of this case, or deciding whether the conviction under section.
Enxis j 180 be right or wrong, I propose to set aside the conviction and
send the case back for non-summary proceedings on charges which
delude section 208. Tt is unnecessary for. me at present to con-sider whether a charge should also be framed under section 180.It may be that the Magistrate, who has all the facts before him,or the Attorney-General, when he comes to frame charges, maydecide to frame a charge under section 180, as well as adding acharge under section 208.
I accordingly set aside the conviction, and send the case backfor non-summary, proceedings.
Sent bach.