004-NLR-NLR-V-45-DE-SARAM-and-SRI-SKANDA-RAJAH.pdf
HEAUX35 J.—de Saratn and Sri Skanda Rajah.
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[In Revision.]
1943Present: Hearne J.
DE SAEAM and SRI SKANDA RAJAH.
M.C. Colombo, 12,685.
Affido vit—Refusal to administer oath—False- statements in affidavit—Groundsof belief—Remedy by way of Mandamus.
A Justice oi the Peace, who honestly believes that an affidavit which't is proposed to swear before him is false may decline to administer anoath.
Where it can be shown that he had no reasonable or probable causefor his belief, he may be required to do his duty.
In such a case the remedy is by way of Mandamus.
T
HIS was an application to revise an order made by the Magistrate ofColombo.
TV. Obeyesekere, for petitioner.
N.Nadarajah, K.C. (with him H. W. Thambiah and I. Misso), forrespondent.
Cur. adv. vult.
November 17, 1943. Hearne J.—
E. M. P. Saram requested the Magistrate of Gamp ah a to administeran oath to him in support of an affidavit which he desired to use inconnection with an appeal to the Supreme Court. Alleging that “ herefused to swear the affidavit” Saram, as the complainant, charged theMagistrate, as the accused, with criminal offences under sections 162 and289 of the Penal Code1. Process was refused and the former haspetitioned this Court to revise the order and to direct that process shouldissue.
In his formal complaint under section 148 C.P.C., which was filed inthe Magistrate’s Court of Colombo, the complainant alleged that therefusal on the part of the accused occurred between March 21 and 24,1942, but when he was orally examined he fixed the date as the 21stMarch. The latter, as will appear, is incorrect. It was probably, to theknowledge of the complainant, untrue. According to a statement made-by his Counsel it could only have been the 23rd March.
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'HDEAHNE J.—de Saram and Sri Skanda Rajah.
In his examination the complainant further stated that the accusedread through his affidavit and remarked that all the contents wereuntrue. He altered this later when he said that "the accused statedthe first few paragraphs were false”.
The complainant had been charged in a criminal case before theaccused, as the Magistrate of Gampaha, and the opening paragraphs ofthe affidavit alleged that he had not been given an opportunity of callinghis witnesses, and that he had been forced to stand his trial on a date onwhich he was only required to hand in his list of witnesses.
When, at a summary trial, an accused pleads not guilty, the Magistrateshall "subject to the provisions of section 289 (5) either postpone thetrial to a date to be then fixed or proceed forthwith to try the case”.As the trial did not proceed forthwith it was the accused’s duty to havefixed a date of trial and it is of interest to note that it was not allegedby the complainant that he did not do so. What he said was that, ashe had pleaded not guilty on 12th February, he was "under theimpression” that the next date, the 26th February, was the date onwhich he was required to file his list of witnesses. What or who gavehim this impression is not disclosed.
It is clear that the accused, rightly or wrongly, took the view thatthere was no room for any misunderstanding, that the' complainant was*iot speaking the truth when he suggested there was, and he declined to" swear the affidavit ”. In these circumstances an application mayhave been made for a mandamus. If the writ was issued and an inquiryheld, questions of law and of fact would have required to be determined.
But the complainant has charged the accused with a criminal offenceor rather two criminal offences under sections 162 and 289 of the PenalCode.
It was argued, in support of' the charges, that no Justice of the Peacehad any discretion, by reason of the provisions of section 8'i of IBe■Courts Ordinance, to refuse "to swear an affidavit” on the ground thatthe contents of it were false:also fEat, if he did so, he committed a
criminal offence. This is a startling proposition of law.
The Solicitor-General is a Justice of the Peace for the Island, and ifhe refuses to administer an oath in support of an affidavit which heknows to be false and which, on the face of it, is intended to be used forthe purpose of perpetrating a fraud, his refusal would amount to acriminal offence! Similarly if a Magistrate refuses to administer anoath in support of an affidavit which he knows to be false and which, onthe face of it, is intended to mislead a Court of law and to cause a possiblemiscarriage of justice, he is liable to be branded as a criminal under thePenal Code!
The error into which Counsel has fallen is that he has assumed and ineffect maintained that any deponent is entitled, as of right, to depose toanything he chooses, irrespective of whether it is true or false. This is,most emphatically, not the law and the fostering of this pernicious viewof the law may have most mischievous consequences. The law givesno person the right to depose to what is not true, whether if be forprofit, the perversion of justice or any other purpose. If a Justice ofthe Peace honestly believes that an affidavit which it is proposed to
HE ARNE J.—de Saram and Sri Skanda Rajah.
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swear before him is false, he may decline to administer an oath. If itcan be shown that he had “ no reasonable and probable cause for hisbelief ” he may be required to do his duty. The remedy is by way ofmandamus.•
It is surprising that Counsel did not pause to examine the implicationsof his argument. “ Any person has the right to swear any affidavit,true or false ”, and a Justice of the Peace who dares to interfere withthis right does so at his peril. What a right for Counsel to assert—theright of any citizen to be untruthful and to complain of a crime against'the State if he is not allowed to be untruthful, the right to testify onoath to what is false!
The complainant and the accused are of course at issue on the questionof whether the affidavit is or is not true. It is difficult to see how the.complainant can possibly substantiate his case. There is no presump-tion of law that when the complainant pleaded not guilty on the 12thFebruary, the accused fixed the date of trial. There is only a presumptionthat if a judicial act has been performed, it has been regularly performed.But as, according to the complainant, the 26th February was mentionedand as, according to the law, the accused was required to give a date oftrial, there appears to be a strong presumption of fact that the accusedfixed the 26th February as the date of trial. If this is so, the presumptioncan hardly be displaced by the complainant’s ‘‘ impressions ”.
To turn to another matter—the complainant, in his evidence, statedthat “ the accused had asked him to get the affidavit sworn to before theAdditional Magistrate and that there was only one Magistrate (theaccused) at Gampaha at the time of this incident ”. This implied that,to the knowledge of the accused, there was no other Magistrate atGampaha to whom the complainant. could go. I ascertained from theCeylon Government Gazette, and so informed Counsel for the complainant,that on March 23, 1942, Mr. Francis Perera had been appointed AdditionalMagistrate for the purpose of trying M. C. 11,820. I told him that Iwould take judicial notice of the appointment. It was after this thatCounsel informed me that, according to his instructions, the complainant- on the advice of the accused, in fact went from the latter to Mr. Pereraand was told that he was not competent to administer an oath to him,as he had been appointed solely for the purpose of trying case 11,820.It follows that the date on which the complainant went to the accusedwas the 23rd March and not the 21st as he stated in his evidence.
hope the complainant will not now be advised to charge Mr. Pererawhen I say that, in my opinion, he took a wrong view of his position inthe matter. Section 428 C. P. C. enacts that “ Subject to general rulesan affidavit may be used in a criminal court if it is sworn ….before any Magistrate ”. Magistrate means “ Magistrate appointedto a Magistrate's Court ” and there is nothing in “ general rules ” so faras I am aware (certainly nothing was brought to my notice) whichprevented Mr. Perera, as Additional Magistrate of Gampaha on 23rdMarch, from complying with the request of the complainant for thereason he gave.
It would appear that the complainant mentioned the 21st March inhis evidence as he was aware that an Additional Magistrate was not
SOERTSZ J.—Peiris and Peiris.
IS
available on that date, and that when he said there was only one Magis-trate at Gam pah a “ at that time ” (the 23rd, not the 21st) he was being'deliberately untruthful. There was another Magistrate to whoseChambers or Court he went.*
It would also appear that when the accused advised the complainantto go to the Additional Magistrate he indicated quite clearly that he hadno intention of acting oppressively. In particular it would appear thathe had no intention of shutting out from the Supreme Court an affidavitmerely because it contained allegations against him. His position, onthe complainant’s own showing, was “ Go to a Magistrate who knowsnothing of the facts to which you propose to depose. I shall have nothingto do with the matter as I am aware that some of the so-called factsare falseEven if the accused was wrong in thinking there were no'
grounds for misunderstanding on the part of the complainant, it isobvious that he did not act with an improper motive, or with intent tocause injury or in abuse of his office. To suggest that in these circum-stances he acted wilfully and criminally is sheer nonsense.
The application is dismissed.
Application dismissed.