132-NLR-NLR-V-31-DYSON-v.-KANAGAMMAH.pdf
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Present : Jayewardene A.J.
DYSON v. KANAGAMMAH.377—P. C. Anuradhapura, 67,728.
False information to public servant—Statement in answer to question—Meaning of term " information ”—Proctor . appearing forcomplainant■ after acting as Magistrate in case-—Irregularity—PenalCode, s. ISO.'
A statement in order to form the basis of a charge under section180 of the Penal Code, viz., of giving false information to a publicservant, must be voluntarily made.
The term " information ” denotes the communication of anyintelligence or knowledge of facts whether it is or it is not in thenature of an accusation, but it does not mean the suggestion of apossible clue to the discovery of a fact unknown.
Where a proctor has initiated criminal proceedings as acting ■Magistrate and framed a charge and called upon the accused toplead, it is improper for him to appear for the complainant.
A
PPEAL from a conviction by the Police Magistrate ofAnuradhapura.
Gnanapragasam (with H. K. P. de Silva), for appellant.
Grossette Thambiah, C.C., for respondent.
June 9, 1930. Jayewardene A.J.—
In this case the accused,. a woman named Kanagammah, wascharged with giving false information to a Sub-Inspector of Policeagainst Mr. Panditanayake, Superintendent of Minor Roads, undersection 180 of the Penal Code, and convicted and sentenced to paya fine of Rs. 50.
. On the morning of November 18 three persons were found tohave been poisoned at the Madawachchia Resthouse. They werethe resthouse-keeper and his wife and a servant, Murugesu. Thelatter was found dead and the resthouse-keeper and his wife wereremoved to hospital in an unconscious state. Sub-Inspector Khanwent to Madawachchi on the 18th, but np information was forth-coming. He asked for assistance from the Criminal InvestigationDepartment of the Police, and Sergeant Krisnan was sent to helphim in the- investigiation. The Sub-Inspector learnt ■ from SergeantKrisnan that the accused, who lived opposite to the resthouse, knewsomething abput the matter, and sent for the accused on November29. He examined her and recorded her statement, which was tothe effect that she saw Mr. Panditanayake on the morning ofNovember 18 driving his car towards Anuradhapura from the<lirection of Jaffna with two men inside the car.
1980
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4980 It }ias been- argued that the statement of the woman was notJayewah- voluntarily made, but that it was forced out of her by the. policebene A.J. officer and that it was made unwillingly in a state of fear and thatDyson v. she had merely answered questions put to her.
K™nakm' The first requisite in a prosecution under section 180 is the givingof false information. The meaning of the expression “ giveinformation ” is to volunteer information, not to make statementsin answer to questions put by the public officer (/?. v. Nyaaung Bo *).It was there remarked that it. would be importing into this sectiona meaning which was not contemplated by the Legislature to saythat this section covers such statements. It was held by thisCourt in Sub-Inspector v. Babbi2 that section 180 only applied toinformation voluntarily given by a public servant. It does notapply to cases where the information is disclosed in the course of theexamination of u person by a police officer or other public servant,especially where the person examined is bound by law to “ answertruly ” all questions put to him.
In Thampu v. Nay an3 de Sampayo J. held that giving informationunder section 180 implies volunteering a statement to a publicservant, and does not cover a case where answers are given toquestions put by some authority at the happening of some event.He set aside the conviction on the ground that the accused did noccome forward and volunteer any information but answered questionsput to him in the course of the inquiry by the headman. In.lamaldeen v. Caruppen4 Drieberg J. found it difficult to hold thatin no circumstances could statements made under section 122, inanswer to questions form the basis of a charge under section 180,when there is express provision (section 122 (3) proviso) that suchstatements could be given, in evidence in a charge under that section.
Jayewardene J. was however of opinion in Sub-Inspector v. Babin(supra) that the proviso to section' 122 would not render a personwho discloses information or an accusation which is proved to befalse liable to be dealt with under section 180. He held that thestatements could not be used as the basis of a charge under section180, although they may be used for collateral purposes, and thatthe proviso in question could not be construed as in any wayamending section 180 and enlarging its scope, in his commentary•of this section Dr. Gour states that the word “ information ” doeshot include a statement made by the accused for the purposes ofhis defence nor answers to questions put by a police officer undersection 161 (corresponding to our section i22 of the Code of CriminalProcedure) (Dr.- Qour, p. 989, 4th ed.), but otherwise it includes any
*’(1905) 2 Cr. L. J. (Indian 474) in Oour 990.
(1923) 25 N. L. R. 117, at p. 126.
(1923) 25 N. L. R. 69.
4 (1928) 28 K. L. R. 458.
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information whether given on request or otherwise. The test, tomy mind, seems to be whether the accused voluntarily gave anyinformation. According to Batanla! (Laiv of Grimes, 4th ed., p. 227)false answers to questions put by a police officer in the course ofinvestigation of a cognizable offence do not fall under this section.The accused says that when she first mentioned what she saw to herhusband, he asked her to keep quiet, but later she talked about it toone Sabapathi. Sergeant Krisnan discovered that she knew somethingand informed the Sub-Inspector, who sent the Weedi-Aratchi tofetch her. She says that Weedi-Aratchi took her to the Inspector,threatening to tie her up and take her forcibly before the Inspectorand out of fear she went up with him. She told the Inspector she• was not willing to make a statement, and the Inspector assured herof her safety. She says that she was examined by the PoliceMagistrate and she told him that she could not perfectly identifythe man (Mr, Panditanayake). Sergeant Krisnan says that he toldthe Inspector that the Magistrate had disbelieved the woman.The accused is, a poor, ignorant. Tamil woman. Her whole statementhas not been recorded. The Inspector admits that she told him•she did not want 'to go to Court as it was inconvenient to her,but that he did not record this statement. That part of her state-ment though unrecorded is very material in a prosecution of thisnature as showing her unwillingness to make any statement. Thewhole statement as it has been recorded bv the Inspector is suchthat I am inclined to hold that it was made merely in reply toquestions and after she was assured of her safety. She has beenwarned by her husband to sav nothing. She told the GovernmentAgent that she abused one Suppfamaniam for dragging her intothis and also scolded Sabapathipillai for giving her name to thepolice. The Government Agent says that she appeared indignantthat her name had been disclosed to the police. It may be that herstatement to the Police Inspector was made through sheer fear afterthe threats held out to her by the Weedi-Aratchi. When takenbefore the Government Agent she perhaps felt that she was boundto repeat the same statements to escape any possible danger. It isdifficult to understand the mentality of women of this class, but .fear operates strongly on their minds. I cannot, resist the conclusionafter a careful scrutiny of the evidence that the statements made tothe Inspector were not voluntary statements.
The statement complained of is that on the morning in questionthe accused saw- Panditanayake driving his car towards Anuradha-pura. There' was no direct, accusation. It may have affordedsome clue which if further investigated and followed up may haveformed a link in a chain of other direct or circumstantial evidence.By itself it is of no probative value. The term “ information ” denotesthe communication of any intelligence or knowledge of facts whether
1980
Jayewab-DENU A.J.
Dyson V.Kanagam-mah
1980
Jayewab-DENE A.j.
Dyson v.Kanagnm-
.nmh
( 476 )
it is or is not in the nature of an accusation, but it does hot meanthe suggestion of a possible clue to the discovery of a fact unknown(Dr. Qour, p. 989). In that view the accused has given no informationagainst Mr. Panditanayake which could be used to his detriment.The case of Inspector v. Batcho1 was decided on the same principle.
Then again it is for the prosecution to prove that the accusedwhen she made the statement did not believe that she sawMr. Panditanayake. His alibi may be well proved but yet theaccused may have thought that she saw him. In B. v. M enthral a1Burnside C.J. observed the alibi set up induced the belief thatthe accused could not have seen the complainant and yet it isconsistent with the alibi that the accused honestly believed whathe says he saw. ”
. It must clearly and beyond reasonable doubt be proved that theaccused knew of the falsity of the information he gave (Kitchell v.Peeries3). It is admitted that the accused bore no illwill towardsMr. Panditanayake and she' had no motive for implicating .him.Mr. Panditanayake "stated that he had ample evidence' that theKachcheri Mudalivar instigated the woman to incriminate him,but not a single witness was called to prove this serious allegation.The Magistrate holds that the natural and probable inference is thatthe accused made the statement at the instigation of the enemies ofMr. Panditanayake. In the absence of any evidence it would notbe safe to make or give effect to such an inference. The enemieswere at Anuradhapura. It is difficult to think that they influencedthe witnesses at Madawachchi or were responsible for the rumoursthere connecting the name of: Panditanayake with the: murder.The poisoning remains a mystery, and the servant,. Andris, who. hasbeen charged with murder, still is in concealment. Neither theresthouse-keeper nor his wife has been examined in this case.Whether a motor car came to the resthouse or not on this morningor even at night has not been proved. If a car did pass the accused’s'house, it is possible that the accused mistook the driver for Mr.Panditanayake. It is not necessary or safe to infer that his enemiesset up this woman to make a false statement, nor does it follow, inthese days of fast travelling, if Mr., Panditanayake started fromKurunegala in the early hours ,of the morning that he could nothave been at all the places he mentioned and also at Madawachchivaas stated by the accused. They are all within reach irix a fasttravelling car within three hours.
It was contended that the Magistrate who initiated the proceed-ings appeared for the complainant at the trial and conducted theprosecution, and that this was unfair to the accused. It has been
} I1914) 6 Bal. Notes 16.* {im) 9 S. CC. 10.
\^ (1889) 9 S^C. C. 53.x
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held that a proctor who has appeared or advised one of the partiesat any stage should not also be the judge. Bertram C.J. held thatthe administration of justice should be free from even the suggestionof suspicion (Dingiri Mahatmaya v. Mudiyanse1). In C. li. Colombo,40,396, S. C. N. Feb. 17, 1930, where an advocate who appearedfor one of the parties sat as judge later and made certain orders,Dalton J. thought it was a very grave irregularity which vitiated theproceedings and followed the case' of Kiny v. Sussex Justices (exparte M’Carthy-), where Lord Hewart C.J. observed that “ it is notmerely of some importance but is of fundamental importancethat justice should not only be done but should manifestly andundoubtedly be seen to be done. ”
In the present case Mr. Krisnaratne, who is the Crown Proctorand was acting as Police Magistrate, ordered summons to issue onFebruary 5 and examined Mr. Dyson, the Government Agent, amiordered summons to reissue on February 11. The accused appearedbefore him on February 15, and he framed a charge against her andrecorded her plea, and further examined Mr. Dyson and fixed thecase for trial on March 6. When the case came to trial after apostponement he appeared for the prosecution. In the local casecited the counsel acted later as judge, but here the positions havebeen reversed and the judge has appeared as-counsel.
Li the absence of authority it is difficult to lay down any generalrule, but it appears to me that where, as here, a Magistrate hasinitiated criminal proceedings and framed a charge and called uponthe accused to plead, it would be most disconcerting to the accused tofind the same person appearing for the complainant and pressing fora conviction, and he may reasonably suspect and fear that justicemay not be done. The trial Judge may have required some informa-tion, from the Magistrate who had issued summons and examined animportant witness or this Court may have required such information.But as Lord Hewart C.J. observed his one position-was such that,he could not, if he had been required to do so, discharge the dutieswhich his other position involved. His two-fold position was amanifest contradiction. If it were necessary I would have quashedthe conviction and proceedings and ordered a trial de novo on thisground.
However, for the reasons I have stated I do. not think thisconviction can be sustained. I therefore set aside the convictionand acquit the accused.-
» (1922) 24 N. L. R. 377.
Acquitted.! (1924) IK. B. 2 6.
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Jayewar-DENE A.J.
Dyson v.Kanagam-mah