029-NLR-NLR-V-20-GOONETILLEKE-v.-ELISA-et-al.pdf
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1917. ,Present : Shaw J.
GOONETILLEKE v. ELISA et. al.
1,062—P. C. Kalutara, 45,352.
false petition against Sub-Inspector sent to Assistant Superintendent ofPolice—How chargeshouldbeframed—Penal Code,«.180,
should be sparingly exercised in the case of petitions against policeofficers—Interpretation of section.
Accusedpresented a petition to the AssistantSuperintendent
of Police alleging that the Sub-Inspector had failed to make anyinquiries into her case, and had caned her, and had not recordedher complaint. The accused was charged under section 180 of thePenal Code, andthe chargeranas follows:That No. 1 accused
did " give falseinformationtothe AssistantSuperintendent of
Police, Kalutara,by tendering!afalse petitionwith a view to
put complainant into trouble, and thereby committed an offencepunishable under section – 180 of the Penal Code. ” The Magistrateheld that the allegations in the petition 'were false, but he acquittedthe accused on the following grounds:—
That as theAssistantSuperintendent had nopowerto
punish the Sub-Inspector for misconduct, but only to report themattertothe Superintendent, no chargecan be sustained
against the accused under section 180.
The . information against the Sub-Inspector being of
conduct amounting to a criminal offence, no proceedings shouldbe taken undersection 180,inrespect of aninformation with
regard to it, until the criminal charge is disposed of.
Held, (1) That asto thefirstground, “ the matterappearsto
be open to some doubt, " and.itwould be advisable tohavethe
authorities reviewed in a proper case.
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(S/ The second ground of acquittal was bad. “ I do not leadKindersley v. David1 as meaning that no proceedings under section180 can be taken until a criminal charge has been brought, or thatthe principle laid down is intended to apply to a case like thepresent, where no criminal case against the Sub-Inspector by thefirst accused is pending, and where there is obviously no intentionthat any such case should be brought. ”
Held, further, that the charge was bad, and disclosed no criminaloffence.
•- The provisions of section 180 should be exercised very sparinglyand with great caution in the case of petitions against the policeto their superior officers.
XHE facts are fully set out in the judgment.
1917.
GooneMehev. Elisa
Grenier, C.G., for the appellant.
H. J. 0. Pereira (with him Weeraratne), for the respondent.
Cur. adv. vuli.
December 18, 1917. Shaw J.—
This is an appeal by the Solicitor-General from an order of theMagistrate acquitting the three accused: the first, of an offenceagainst section 180 of the Penal Code; and.the second and third, ofabetment of the offence.
The first accused, who is an ordinary villager, came to the policestation at Matugama on September 13 and complained to the Sub-Inspector that she had been assaulted by one Albert and others.The Sub-Inspector^ recorded her complaint, and sent her to theNeboda hospital for examination. The doctor reported that thewoman’s injuries were non-grievous, consisting of contusions andslight abrasions only, and the Sub-Inspector consequently declinedto proceed with the case as a police charge, and referred the womanto the Village Tribunal. The evidence of the Assistant Superin-itendent of Police shows that in so doing he adopted the correctprocedure.
The woman, annoyed by the refusal of the Sub-Inspector to takeup her case, went away, and, with the assistance of her husband, thesecond accused, and of the third accused, who is another villagerwho seems to have some grievance against the Sub-Inspector withregard to other matters, went to a petition drawer and drew up,and subsequently sent to the Assistant Superintendent of Police,the petition that is the subject of the present case.
The petition sets out the first accused’s complaint against themen whom she charges with assault, and goes on to allege that theSub-Inspector had failed to make any inquiries into her case, andhad caned her on the buttocks with the cane he had in his hand,and had not recorded her complaint.
1(1908) 11 N. L.R. 371.
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1917.
Shaw J.
dhonetilleke9. Elisa
The Magistrate has found, as a fact, that the statements that theSub-Inspector struck the woman with his* cane, and that he omittedto make an entry of her complaint in the information book, areuntrue, and he has also found that the third accused abetted herin presenting the petition, but he has dismissed the charge on twolegal grounds. The first ground is that it appears from the evidenceof the Assistant Superintendent of Police, to whom the petition wasaddressed, that he had no power to punish the Sub-Inspector formisconduct, but only to report the matter to the Superintendent,his superior officer, and therefore, in accordance with the ruling inPerera v. Silva,1 Plant v. Harmanis,2 Kindersley v. David,* andother cases, no charge can be sustained under section 180 in respectof false information given to the Assistant Superintendent.
The second ground on which the Magistrate dismissed the chargeis that, the information against, the Sub-Inspector being of conductamounting to a criminal offence, the case of Kindersley v. David *above referred to, shows that no proceedings should be taken undersection 180, in respect of an information with regard to it. until thecriminal charge is disposed of.
Dealing with the second ground first. I do not read Kindersely v.David3 as meaning that no proceedings under section 180 can betaken until a criminal charge has been brought, or that the principlelaid down is intended to apply to a case like the present, where nocriminal case against the Sub-Inspector by the first accused ispending, and where there is obviously no intention that – any suchcase should be brought.
With regard, however, to the first ground, the matter appears tobe open to some doubt. . The cases cited, and a series of caseson the construction of this section of the Penal Code reported in6 Tambiah, at pages 40 et seqare all single Judge decisions, and itwould, in my opinion, be advisable, in a proper case for the purpose,to have them reviewed by a fuller Court, and to have the properconstruction of the section definitely laid down. The section is asfollows: “ Whoever gives to any public servant any informationwhich he knows or believes to be false, intending thereby to cause,or knowing it to be likely that he will thereby cause, such publicservant to use the lawful power of such public servant to the injuryor annoyance of any person, or to do or omit anything which suchpublic servant ought not to do or omit, if the true state of factsrespecting which such information is' given were known to him,shall be punished, &c. ”
The Indian cases Queen Empress v. Budh Sen4 and Queen Empressv, Ganesh Khanderas,s decided under the corresponding section ofthe Indian Pencd Code, seem to show that the section aims at two
1 (1906) 4 A. C. Rep. $3.* (1908) 11 N. L. R. 371.
» (1911) 5 Leader L. R. Ill.4I. L. R. 13 AU 351.
»/. L. R. 13 Bam. 506.
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different offences: (1) Intending to cause, or knowing it to be likelyto cause, the public servant to use his lawful power to the injury orannoyance of some person; and (2) intending to cause, or knowingit to be likely to cause, the public servant to do or omit to do any-thing whioh the public servant ought not to have done or omitted ifhe blew the true state of facts. The earlier Indian oases, QueenEmpress t>, Qolam Ahmed Kaei1 and The Queen v. Periannan,2 appearto have held that to constitute an offence against either part of thesection it was necessary to show the intention to injure or annoysome person, a construction that is not accepted in the later cases.These earlier cases are referred to, and appear to have influencedsome of our local decisions.
The present case, however, does not appeal- to me to be a properor convenient one in which to reconsider these decisions. In thefirst place, no charge appears to have been made or intended underthe latter part of the section. The allegation against the accusedis that the false petition was presented “with a view to putcomplainant into trouble/* not with the intention of making theAssistant Superintendent do something which he ought not to havedone had he known the true state of facts.
In the second place, the charge in the present case is entirelybad, and discloses no criminal offence, and no conviction could beproperly made on it without amendment. It is as follows:That
No. 1 accused did “ give false information to the Assistant Superin-tendent of Police, Kalutara, by tendering a false petition with aview to put complainant into trouble, and thereby committed anoffence punishable under section 180 of the Ceylon Penal Code/’
Two essential elements of an offence under the earlier part of thesection, which is the offence obviously aimed at by the charge, areomitted. First, that the accused knew or believed the informationto be false; and second, that she intended to cause, or knew it waslikely to cause, the Assistant Superintendent of Police to use hislawful power to the injury or annoyance of the Sub-Inspector.
Even supposing the allegations made by the woman to be false,there is nothing whatever in the evidence to show that the secondand third accused knew of their falsity, as they are only shown tohave been assisting her in getting the petition drawn upon herrepresentations as to what had occurred.
There is, moreover, no satisfactory evidence, and no finding bythe Magistrate, on the other essential element omitted in the charge,viz., that the woman intended the Assistant. Superintendent ofPolice to use his lawful power, if, indeed, he had any, to the injuryor annoyance of the Sub-Inspector. The object of the woman wasobviously, primarily at any rate, to induce the police to take upher case against the men who had assaulted her.
i J. L. R. 14 Cal. 814.31. L. R. 4 Mad 241.
1017-
Shaw, J»
QoaneliUekev. Elisa
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1917.
Shaw J.
QoonetiUeke«. Elisa
Although I quite agree with the remarks of the present ChiefJustice in Goohson v. Appuhamy,1 of the importance for the protec-tion of the villagers themselves of punishing false and maliciouspetitioners, I think that the provisions of section 180 should beexercised very sparingly and with great caution in the case o£petitions against the police to their superior officers, for it is muchbetter that a Police Superintendent’s time should be occasionallywasted in inquiring into an unfounded charge against one of hissubordinates than that villagers should be deterred by. criminalprosecutions from laying their complaints against the police, whichare necessarily somewhat difficult to* prove in a Court of law, beforetheir superior officers for departmental inquiry.
1 dismiss the appeal.
Appeal dismissed.