030-NLR-NLR-V-15-COOKSON-v.-APPUHAMY.pdf
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1911.
■ Pretent: Wood Renton -J.
COOKSON v. APl’UHAMY.
451—P. 0. Ratnapura, 1-5.SSI.
False informationI oGovernmentAgent—"Lawfulpower"—Public
scroant—Penal Code, s. ISO.
In order to support a conviction under section 180 of the PenalCode there should he proof that information whichthe accused
knew or believed to be false was given by him to a public servant,intending thereby to cause, or knowing it to be likely that he wouldcause, such public servant to use his lawful power to the injury orannoyance of any person, or to do or omit anything which suchpublic servant ought not to do or omit if the true state of the factswere known by him.
A person who preferred a false information amountingto a
charge of a criminal offence to a Government Agent was held tohave committed an offence under section 180.
A Government Agent is a “ public servant,” and is vested with“ lawful power ” within the meaning of section 180. *
* March 1, 1912. Lascelles C.J.—
The questions of law which are really involved in this appeal have been fullydiscussed by my brother Wood Eenton, .who was pressed by the learnedSolicitor-General to give a ruling on another point, namely, whether theCrown is bound by the provisions of section 229 of the Civil Procedure Code.The question has accordingly been referred to us. When .the case came on forargument, the learned counsel who represented the respondent stated that hewas not aware that the case had been referred on this point, and that he wasuot- prepared to argue the question fully. It is unnecessary to decide thispoint, as mv brother Wood Benton has observed, for the purposes of thisappeal, and I do not think that any good purpose would be served by attempt-ing to decide a question which does not arise on the appeal, and which counselare not prepared to argue fully.
I would remit the case for judgment as suggested in the last paragraph of
. my brother Wood Renton’s judgment.
Grf.nter T.—I agree.
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Thewords" lawful power ' mean apowerwh:ch ifl vested in a 1911*
publicofficerby virtue of his office:section180 is not applicable(^ookson v,
in a case where a public officer can do no more than pass on inform a* Appuhamyfrion to another, where he is, so to speak, merely a channel for theconveyance of the information io the proper quarter. On the otherhand, if a public servant is vested with special power which enableshim to take independent action on the information brought beforehim in a petition, he possesses " lawful power*' within the meaningof section 180.
FJ1 HE facts arc set out in the judgment.
Bawa (with him Mol a mure), for the accused, appellant.
Walter Pereirat K.C., S.-G, for the respondent.
Cut. adv. vult.
October 15, 191J. Wood Renton J.—
This case was argued before me first on July 21 last. I sent itback to the Police Court of Ratnapura for further evidence. Theinquiry in the Police Court was completed in the end of August, butas both sides% desired to have the opportunity of putting fresharguments before me on the further evidence, it was not in. my powerto deal with the appeal until my return a few days ago from circuit.
The accused-appellant was charged under sections 102 and 180 ofthe Penal Code with having aided and abetted the presentation of afalse petition by one Tena to the Government Agent of the Provinceof Sabaragamuwa against Mr. Robertson, Superintendent of Lanarkestate, at Masimbula. Tena was convicted as principal in PoliceCourt, Ratnapura, No. 13,710, and was sentenced to six months*rigorous imprisonment and to pay a fine of Rs. 100. That decisionwas affirmed by the Supreme Court in appeal. In the present casethe appellant has been convicted as abettor,, and has also beensentenced to six months* rigorous imprisonment and to pay a fineof Rs. 100. The case is important both as regards the position of theappellant himself and as regards the question of law which it in-volves. The appellant was until recently Arachchl of Masimbula, and*it is obvious that to him such a sentence as the Police Magistrate hasimposed is a serious matter. The case, however, derives additionalimportance from the nature of the charge itself. There can, in myopinion, be no difficulty as to the attitude which Courts of Lawshould adopt in approaching the consideration of prosecutions ofthis character. On the one hand, nothing ought to be done whichcan interfere with the bona fide exercise of the right to petition, and:there should be no readiness to brand as intentionally false mereexaggerations or even misstatements. On the- other hand, thepresentation of false and malicious petitions is an offence frequentlycommitted in this Colony, and one that causes great hardship to thepersons against whom such petitions are aimed. Bn the present
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1911. case the complainant happens to be a man of position. But that isWoon a mere accident, and the maintenance and firm administration ofRenton J. the law enacted by section 180 of the Penal Code, while they are■Oookeon v. necessary in the interests of the whole community, are of far greaterAppuhamy importance to the poor than to those who are well to do. Peoplewhose character is known in the district in which they reside, andwho have a recognized status there, cannot be lightly attacked, andif so attacked are well able to defend themselves. On the otherhand, people who are not known, whose lives are obscure, and whohave no official or social position, can be made subject by false andmalicious petitions to a degree of harassing which is sometimesalmost intolerable. There ought to be no indisposition on the partof the Courts of Law to apply the provisions of section 180 of thePenal Code in all cases that really come within the scope of thatenactment, even although the administration of the law in that sensemay lay the foundation for an argument that the right to petitionis being interfered with. Having said so much, I proceed to dealshortly with the facts and with the law on which the determinationof the present case must depend. It is necessary, as I pointed outin my interlocutory judgment sending this case back to the Police'Court for further evidence, in order to support a conviction undersection 180 of the Penal Code, that there should be proof thatinformation which the accused knew or believed to be false was givenby him to a public servant, intending thereby to cause, or knowingit to be likely that he would cause, such public servant to use hislawful power to the injury or annoyance of any person, or to do oromit anything which such public servant ought not to do or omit,i.f the true state of the facts were known by him. Where we are■dealing, as in the present case, with a charge of abetment, it isnecessary, of course, that the accused should be shown to have•aided or instigated'the commission of the substantive offence.
I propose to deal with the evidence quite briefly. There can be no•doubt but that Tena preferred information amounting to charges ofat least two criminal offences against the complainant, Mr. Robert-son. At the trial of the present case Mr. Robertson has sworn thatthese charges were false. His evidence on that point stands uncon-tradicted. We are, therefore, in presence of false information givenby Tena, and given (for on this point also there is no controversy;to a “ public servant-”
Whether or not Mr. Cookson, the Government Agent of Ratnapura,was vested with ‘‘ lawful power, ” which he could use to Mr. Robert-son’s prejudice within the meaning of section 180 of the Penal Code,is a question that I will consider in a moment. There can be no■doubt whatever but that he was a ■" public servant. ” The inter-pretation of the term " lawful power ” in the section in question hasbeen clearly settled by a series of decisions, to which it is unnecessaryfor me to refer in detail.
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They are summarised, and, if I may venture to say so, very clearly .1911,
explained by my brother Grenier in the case of Kindersley v- David.1 Wood
The law as stated by .Mr. Justice Grenier in that case has been Rentonfollowed by his Lordship the Chief Justice in No. 548—P- C- Cooksm ».Panadure, No. 36,504.2 It is clear on these authorities that the words Appuhamyt“ lawful power ” mean a power which is vested in a public officer byvirtue of his office, and that the section is not applicable in a casewhere a public officer can do no more than pass on information toanother where he is, so to speak, merely a channel for the conveyanceof the information to the proper quarter. On the other hand, it isequally clear that if a public servant is vested with special powerwhich enables him to take independent action on the informationbrought before him in a petition, he possesses “ lawful power ” with-in the meaning of section 180 of the Penal Code. As an illustrationof this principle I may refer to the case of Bex v. Amolis,3 where .itwas held that a person who gave false information against a publicservant in a petition to the Governor is guilty of an offence under sec-tion 180 of the Penal Code, since it was in the Governor’s power asexecutive Head of the Colony to initiate inquiries and proceedingswhich might have a direct and prejudicial effect on the position of thepublic servant in question, if the charge contained in the petitionproved to be true.
In this connection I may mention that there is in the FrenchCode Penal a provision analogous to section 180 of our ownPenal Code, and that it was construed in the same sense by theFrench Courts in the early part of last century in a case in which apetition had been presented by a subordinate officer to NapoleonBonaparte, who as head of the State had the power to set the wholemachinery of executive inquiry in motion. That case is reportedin the first volume either of Sirey or of Dalloz, to neither of whichI have access in this Colony. Has Mr. Cookson then been shown bythe evidence to have ,r lawful power ” of the kind that I have justattempted to describe? I think that this question must be answeredin the affirmative.* He has said expressly that he is GovernmentAgent in charge of the police, and that as such he is vested withpolice powers. Mr. Cookson’s evidence on this point stands un-challenged. It is indeed, corroborated by the evidence of a Sub-Inspector, to whom he gave instructions to hold an inquiry inpursuance of Tena’s petition, and who held such an inquiry atMr. Robertson’s house, assisted by police officers in uniform.
Mr. Cookson adds that if he had found the charges to be well founded,he could, and. would, have ordered Mr. Robertson to be prosecutedcriminally. On that evidence I hold without hesitation thatMr. Cookson was invested with ‘‘ lawful power ” within the meaningof the section of the Penal Code, under which the present charge-
1 U908) 11 N. L. R. 371.. 2 S. C. Min., Sept. 8, 1911.
a (1908) 11 N. L. R. 265.
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1911.
Wood.Benton J.
Cookson v.Appuhamy
was brought. We have, therefore, proof that Tena presented to apublic servant information which was false in fact, and that thepublic servant to whom the petition was presented had lawful powerto act upon it within'the meaning of section 180 of the Penal Code.
The only other element to be established in order to prove thfecommission of the principal offence by Tena is his mens rea. Theexistence of mens rea is proved by the falsity of the charge, and bythe. evidence of Mr. Robertson that he had had no kind of dispute withTena which could give him any pretence of a ground for preferringit.. It remains only to consider whether the charge of abetmenthas been brought home to .the accused-appellant in this case. Thatquestion must clearly be answered in the affirmative, if I am entitledto act' upon the evidence of the petition-drawer at the trial of thiscase in the Police Court. If it were necessary to decide the point,I should be prepared to hold that, even in the evidence given by thepetition-drawer in this case, there are positive statements whichbring home guilt to the appellant. There is no difficulty in seeingthe line that the petition-drawer was endeavouring to follow in hisevidence. For some reason, into which ft is unnecessary to inquire,he had determined to retract the evidence that he gave at the trialof Tena, evidence which if repeated would have shown the accused-appallent in the present case to have been the veal instigator of thefalse petition. But the petition-drawer had also before his mind thepossibility of his own conviction for perjury—a possibility whichwas realized in fact, in spite of his skilful attempt to give no evidenceagainst the accused-appellant—and at the same time to keep himselfout of the reach of the criminal law. But he does make, positivestatements, which I think amount to direct evidence, that it was theaccused-appellant who gave him instructions for the very petitionforming the basis of the charge. I do not propose to quote hisevidence on this point, for. in my opinion, even if it be excluded,there is more than sufficient evidence to justify the appellant’sconviction. It was stated by Mr. Robertson that at the very timewhen the petition was being drawn up he saw the accused-appellantbending over the table at which the petition-drawer was writing it.Mr. Proctor Gooneratne gives evidence to the same effect. He saysthat he saw the Arachchi near the petition-drawer’s table “ getting•something done. ” In addition to that, we have the defence of the■accused-appellant, himself of which account must "be taken in con-sidering whether or not hb had guilty intention. His defence wasan alibi. He denied that he was at the Police Court of Ratnapura•at all on the day in question. That alibi has been completelydisposed of by the evidence for the prosecution, and the Koralu.who, the appellant himself said, would be able to support it,was called only at the further inquiry as a witness to chameUw.On these grounds I have no ultimate difficulty in coming t.o theconclusion that this conviction must be affirmed.
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T. have still to deal with the question of sentence. As I havealready stated, to a man in the position of the accused-appellantsix months’ rigorous imprisonment, coupled with a fine of Rs. 100,is a punishment of exceptional severity, and I have weighed withthe utmost care all the evidence of character which, at my ownsuggestion, the appellant had an opportunity of calling before theCourt at the further inquiry. I do not feel, however, that thissentence could fairly be interfered with- The appellant is a man ofposition and of influence. He has aided, if he did not directlyinstigate (which I myself think would be the correct interpretationof the facts), an ordinary villager in preferring charges of seriouscriminal offences against another man. The fact that- the com-plainant is a person of standing does not add to the gravity of theoffence. The punishment of the presentation of false and maliciouspetitions, as I have tried to explain at the commencement of thisjudgment, is a matter of far greater moment to the poor than to theTich. With these observations I affirm the sentence as well as theconviction.
Appeal dismissed.
♦
1911.
WoodRenton J.
Cookson v.Appuhamy