155-NLR-NLR-V-17-BANDA-v.-SADA-et-al.pdf
( 510 )
1914.
Present: 'VtTood Benton C.J.
BANDA v« SADA et al.
892—P. C. Kurunegala, 19,832.
Poto evidence—8ummary proceeding under 8. 440, •Criminal ProcedureCode—Trial of several witnesses en masse—May all cases of" false evidence " be dealt with under 8. 440 t
The Legislature has left the Courts free as a matter of law todeal under section 410 of the Criminal Procedure Code with anyform of M false evidence ” within the meaning of section 188 of thePenal. Code; but the Supreme Court has the right to inquirewhether this statutory power can be safely exercised in anyparticular case.
The fact that several witnesses speak unanimously to an allegedcircumstance is no reason why they should not be summarilypunished, if the Magistrate is satisfied on reasonable grounds thattheir evidence on the point was false.
It is not irregular to try several witnesses en masse under section440 of the Criminal Procedure Code.
fjp HE facts are set out in the judgment.
Koch, for the appellant.
October 27, 1914. Wood Benton C.J.—
The complainant-appellant, the' Gan-arachchi of. Doratiyawa,charged a man Sada and his sister Dingiri in the Police Court ofKurunegala with having obstructed him in the execution of hisduty by attempting to cut him with a cooper's axe. He gave directevidence as to the threatened use of the axe, and four of his witnessessupported his .story on this point. The learned Police Magistratedisbelieved them all, acquitted the accused, called on the complainantand his witnesses to show cause why they should not be summarilypunished under section 440 of the Criminal Procedure Cede, andafter having heard what they had to say, sentenced each of them
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to pay a fine of Bb. 50, or, in default of payment, to undergo two*****
months' rigorous imprisonment. The complainant appeals. TheWood
points in his favour were clearly and fairly argued by Mr. Gladwin Ras*owC.J.
Koch. They are, in my . opinion, all covered, either directly or by Banda v.
necessary implication, by the authority of the decision of the Privy 8°**.
Council in Chang Hang Kin v. Piggott.* It was contended here on
behalf of the complainant (i.) that he and other witnesses should
not have been tried en masse, but that proceedings should have been
taken against each of them separately, as required by section 178
of the Criminal Procedure Code; and (ii.) that as they gave direct
evidence of the attempted use of the axe by the accused, and there
was nothing to show that that evidence was false, the case was not
one in which the summary power conferred on the Courts by section
440 of the Criminal Procedure Code could have-been, or, in any case,
should have been, exercised.
The summary proceedings in Chang Hang Kin v. Piggott1 aroseout of the trial of an issue in bankruptcy aB to whether one WongKa Chuen was, at tile date of the petition, a partner in the indebtedfirm. The plaintiff called eight witnesses to prove that he was.
The Chief Justice disbelieved them, and, in the close of the case,charged them with having “ been guilty of the most flagrant con-spiracy to defraud the alleged partner Wong Ka Chuen, ” andsentenced them to three months’ imprisonment on the" spot. ThePrivy Council set the convictions aside because the witnesses hadnot been accorded an opportunity, before they were sentenced, ofurging anything that they might wish to say in their defence. ButLord Collins, who delivered the judgment-, expressly held thatlegislation of this character “ contemplated summary proceedingson the spot, not involving a statement or trial of specially formulatedissues, ” and that the language used by the Chief Justice was quitesufficiently specific to make the appellants aware of the pith of the .charge against .them. This ruling directly disposes of the first pointurged in support of the appeal, and Mr. Koch abandoned it inargument. In my opinion, it disposes of {he second point also bynecessary implication. The issue on which, in Chang Hang Kin v,
Piggott, 1 .the false evidence was given was'the sole issue in the case.
Yet there is no hint in the proceedings in the Privy Council thatthat circumstance in any way prevented the Chief Justice fromsummarily punishing the witnesses for perjury, if he was so clearlysatisfied of their guilt that he thought it unnecessary to direct aformal prosecution. In the present case the learned Police Magis-trate charged the complainant and his witnesses with having givenfalse.evidence in regard to the central point in their story, viz., thethreatened use of the axe by the accused. The fact that theyspoke unanimously to that- alleged circumstance is no reason whythey “honl'l not be summarily punished, if the Police Magistrate
1 (1909) A. C. 312.
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Wi
Wood
BmiwwgJ.
Amfat.Soda
was oleariy satisfied on reasonable grounds that their evidence onthe point was false. The unanimous testimony of the eight witnessesia Chang Hang Kiu v. Piggott in favour of the partnership of WongXa Chuen was not held by the Privy Council to constitute anyground for their immunity from summary punishment. The viewtaken by the learned Police Magistrate of the evidence of thecomplainant and his friends in the present case is corroborated bytheir shifty and wholly unreliable attempts to explain the injurieson the accused. The appeal must be dismissed.
, The true interpretation of the scope of section 440 of the CriminalProcedure Code appears to be this. The" Legislature has left theCourts quite free as a matter of law to deal under that section with anyform of *1 false evidence ” within the meaning of section 188 of thePenal CiJde, and -if we attempt to fetter that discretion, by rigidgeneral as to the class of cases in .which it may or may not beexercised,' we shall be acting rather in a legislative than in a judicialcapacity,L and running the risk of paralysing the operation of astatutory power, the maintenance. of which in full working order isessential to the'administration of justice in this country. But thereis ancient and sound authority for the proposition that “ all thingsthat are lawful, are not expedient, " and we have every right toconsider ourselves, in the exercise : of . our original jurisdiction, andin the exercise of our appellate jurisdiction, to inquire whether thisstatutory power can be safely exercise in *any particular case thathas come before us.
Appeal dismissed.
H. C. COTTLB, GOVBBHMEHT TONTBB, COLOMBO, CSfriOM.