099-NLR-NLR-V-54-In-re-KANAGARATNAM-et-al.pdf
GTOTASKKARA J.—In re JCanagaratnam
419
1951Present: Gratiaen J. and Gunasekara J.In re KAISTAG ARATNAM el al.8. C. 19-21—D. C. Jaffna, 6,457B'
Contempt of Court—Proceedings for sequestration before judgment—W ilfvZly makingfalse statement—Ingredients—Bias of trial judge—Civil Procedure Code, s. 656.
The mere swearing of an affidavit which contains a statement that is factuallyincorrect cannot amount to a contempt of cohrt within the meaning of section656 of the Civil Procedure Code. The provisions of that section empower acourt to punish as for a contempt only a person wilfully making a falsestatement.
A charge of contempt of court ought not to be tried by a judge who hasalready reached the conclusion that the accused person is guilty-
A
jCj-PPEAIL from a judgment of the District Court, Jaffna.
H. V. Perera, K.C., with T. Somasunderam, for the appellants.
It. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 20, 1951. Gunasekara J.—
Each of the three appellants was convicted in the District Court ofJaffna on a charge of contempt and they were fined Rs. 1,000, Rs. 500and Rs. 1,000, respectively. At the close of the argument in appeal .we set aside the convictions and sentences and said that we would giveour reasons later.
420
GTHsTASEKLARA J.—In re Kanagamtnam
The charges relate to the making of two affidavits by the second andthird appellants and the use of them by the first.
The first appellant, who had instituted an action against oneSubramaniam for the recovery of a sum of Rs. 5,780" 83, obtained fromthe District Court an order under section 653 of the Civil ProcedureCode for sequestration of the latter’s property before judgment. Thepetition for sequestration, which is dated the 21st March, 1950, wassupported by affidavits of the same date from the three appellants.The first appellant averred that Subramaniam was making arrangementsto alienate his properties fraudulently in order to avoid payment ofthe first appellant’s claim and that the other two appellants had informedhim of those arrangements. The second and third appellants in theiraffidavits declared that they had overheard conversations betweenSubramaniam and other persons which indicated that he was trying tosell a house and garden belonging to him ; the second appellant deposingto such a conversation that he claimed to have overheard on the 19thMarch, 1950, when be was opposite Subramaniam’s drug store, whichis in Jaffna ; and the third appellant to one alleged to have been over-heard by him on the 20th March, 1950, when he was inside this store.It has been established that Subramaniam was in Colombo during thewhole of the 19th and 20th March, 1950, and could not have been inJaffna at any time on those two days.
The charges that the appellants were called upon to meet are set outin the summonses that were served on them. The contempt allegedagainst the first appellant is formulated as follows :—
“ That you filed two affidavits dated 21st day of March, 1950, inCourt, to the effect that the defendant Nagalingam Subramaniam ofNallur, Jaffna, was in Jaffna on the 19th and 20th March, 1950, whenin fact the said Nagalingam Subramaniam was in Colombo on the saiddates, which fact was, to your knowledge false, and obtained an orderfor sequestration against the property of the said defendant.”
The learned Crown Counsel agreed that there was no evidence to provethat the first appellant knew that the statements in question were falseand he therefore, quite properly, did not support the conviction of thisappellant. He also pointed out that the provisions of section 656 ofthe Civil Procedure Code, under which the learned Additional DistrictJudge purported to deal with the appellants, empower a Court to punishas for a contempt only a person wilfully making a false statement andnot also a person who merely files in Court an affidavit containing afalse statement. Curiously enough, the formal order of convictionsigned by the learned Judge does not allege that the first appellantknew that the statements were false. It states that the contemptconsisted in his having “ made false statement by affidavit ”, andthat he “ made false statement by affidavit ” by filing the affidavitsof the other two appellants and obtaining the order for sequestration.He was convicted, according to this document, of having committeda oontempt of Court “ in that he on the 21st day of March, 1950, filedtwo affidavits to the effect that the defendant Nagalingam Subramaniam
GUNASEKLARA J.—In re Kanagaratnam
421
■of TvTa.llnr Jaffna was in Jaffna on the 19th and 20th March, 1950, whenin fact the said Nagalingam Subramaniam was in Colombo on the saiddates and obtained an order for sequestration against the property ofthe said defendant and has thereby made false statement by affidavitThe contempt alleged against each of the other two appellants is asfollows :—
“ that you swore an affidavit on the 21st day of March, 1950, to theeffect that you saw the defendant Nagalingam Subramaniam of Nallur,Jaffna, in Jaffna on the 19lh and 20th March, 1950, when in fact thesaid Nagalingam Subramaniam was in Colombo on the said dates.”
The charge does not allege against either of them that he knew thatthe averment in question was false. Obviously the mere swearing ofan affidavit which contains a statement that is factually incorrect cannotamount to a contempt of court.
The charges were framed against the appellants on the 5th September,1950, as a result of an inquiry that was held on the 5th August, 1950,into an application to the Court by Subramaniam to vacate the order•of sequestration. Subramaniam’s first witness was an advocate,Mr. Tampoe, who deposed to having met him in Colombo on the 18th,19th and 20th March in connection with a matter in which he had beenretained to act for him. At the close of his evidence in chief the firstappellant’s counsel moved that the order be vacated. In answer toa question from the learned Judge as to whether he withdrew " theaverments contained in the affidavit ” he said that there might be“ an error in regard to the date in the affidavit ”. The Judge thereuponheld that there was a duty cast upon the court to proceed further withthe inquiry to ascertain whether the averments were false, and he calledupon Subramaniam’s counsel to place before him the rest of the evidenceon which he relied to prove their falsity. Mr. Tampoe was then examinedfurther by the Judge and the first appellant’s counsel was given anopportunity of cross-examination, which he declined. Subramaniamhimself and one Duraisingham were next examined by the former’scounsel and by the Judge, and Subramaniam’s case was closed. TheJudge then deb'vered an order releasing the property that had beensequestered.
The evidence that had been placed before the learned Judge at thininquiry related only to the question as to whether Subramaniam wasin Jaffna on the 19th or the 20th March, 1950, and he held that ijb hadbeen “ conclusively proved that on these two dates the defendant couldnot have been in Jaffna ”. He then went on to say : “ I have no doubtin my mind that the averments contained in the affidavit are false andthat the persons who had sworn the affidavits and the plaintiff whohad depended on these affidavits have been guilty of gross contemptof Court. I have not decided in my own mind as to what action I shouldtake in this matter, but I shall consider and deal with the matter in duecourse ”.
The conclusion that the appellants had been “ guilty of gross contemptof court ” appears to have been regarded by the learned Judge as anecessary inference from the fact that Subramaniam could not haye
422
GTXISr A iSEEAIRA J.—In re Kanagaratncvni
been in Jaffna, on the 19th or 20th of March, 1950. He appears to havefound it possible to reach this conclusion although the second and thirdappellants had been given no opportunity of explanation. He has notconsidered the possibility that each of them had given a truthful accountof an incident observed by him but had made a mistake in the affidavitas to the date of the incident. There was nothing in the evidencebefore him to exclude that possibility though Subramaniam himselfhad been examined as a witness.
Having come to this clear conclusion about the guilt of the appellants,the learned Judge decided a month later to charge them with the offencesof which he had already found them guilty, and on the 5th Septemberhe made an order directing that the three appellants should be summoned
“ to show cause why they should not be called upon to meet a chargeof contempt of Court in swearing affidavits on the 21st March, 1950,to the effect that they saw the defendant N. Subramaniam in Jaffnaon the 19th and 20th March when in fact the said Subramaniam wasin Colombo.”
There was, of course, no evidence that the first appellant swore anaffidavit containing such an allegation, though the learned Judge decidedthat he should be summoned to answer a charge of contempt upon thefooting that there was. Nor was there evidence that the second appellantdeposed to having seen Subramaniam on the 20th March, or the thirdappellant to having seen him on the 19th March. This order of the5th September rather suggests that while the learned Judge had nodoubt that each of the appellants was guilty of the offence with whichhe was about to charge him, he was not equally clear in his mind as towhat were the acts that constituted the offence. Moreover, he appearsstill to have been of the view that the making of a factually incorrectstatement in an affidavit was by itself enough to constitute a contemptof Court..
The summonses directed by this order were issued on the same day,requiring each of the appellants to appear on the 11th September, 1950,to answer the charge of contempt framed against him. At the same timethe learned Judge also issued warrants for their arrest, purporting toact under section 794 of the Civil Procedure Code which empowers aCourt to issue a warrant for the arrest of a person summoned to answera charge of contempt “ if it has reason to believe that the attendanceof the accused person at the time appointed in the summons to answerthe charge cannot otherwise be secured ”. The grounds on which thisextraordinary step was taken are stated in the learned Judge’s orderas follows :—
“ J have reason to think that the 3 accused would not be availablebefore I leave station on transfer. This is a matter which should bedealt with by me. I therefore direct that warrants also do issueagainst the 3 accused under section 794. The warrants will have bailin Its. 500 endorsed .”'
Assuming that there may be some most unusual case in which itmay be proper to deprive a man of his liberty because a Judge is about
GTJNASEKARA J.—In re Katiagarainam
423
to vacate >»i« office, I can see nothing in this case that could justify theissue of these warrants. Nor can I see any justification for the learned.Judge’s view that this was a matter which should he dealt with by him.A precisely contrary view would have secured for the appellants a hearingby a Judge who was not handicapped by a premature conclusion thatthey were guilty of the charge. It is one thing to hold that there isground for calling upon a person to answer a charge of contempt, or ofany other offence, and quite another to hold that he is guilty of theoffence. It is unfortunate that the learned Judge did not regard himselfas disqualified for hearing these charges by reason of the fact that hehad already come to the uncompromising conclusion that he had nodoubt that the appellants were “ guilty of gross contempt of Court ”.
That the learned Judge was unable to rid himself of this view andapproach the trial of the charges with an open mind is indicated by hierecord of the proceedings held on the 11th September when the appellantsappeared before him. The material portions of that record are asfollows :—
“ Accused are called upon to admit or deny the charge as requiredunder section 796. Accused severally deny the truth of the charges.
The accused ‘propose to lead evidence and I am therefore compelledto cite the two witnesses who have already given evidence.
Cite Mr. Advocate Tampoe and Mr. Duraisingham
Office will have to take special steps and communicate with the
Fiscal to effect this service forthwith
Inquiry on 20.9.
Inquiry is specially fixed as I am expected to leave the station bythe end of the month.”
Although the learned Judge regarded the disposal of the chargesagainst the appellants to be a matter of such urgency as to justify hiasubjecting them to the humiliation and inconvenience of arrest in orderto ensure their attendance in court on the 11th September, he had notrequired the attendance on that day of the witnesses on whose evidencethe charges were based. Apparently, the guilt of the appellants wasso clear to him that the possibility of their not admitting the truth ofthe charges was outside his contemplation, and it was only the circum-stance that they proposed to adduce evidence in support of their denialthat “ compelled ” the learned Judge to summon witnesses to giveevidence in support of the charges. The clear conviction in his mindthat the appellants were guilty appears to have obscured his view oftheir right to be acquitted if they did not admit the truth of the chargesand no evidence was adduced in support of them, whether the appellantsthemselves proposed to adduce any evidence or not.
The evidence adduced in support of the charges at the inquiry thatwas held on the 20tb September consisted of that of Messrs. Tampoeand Duraisingham regarding Subramaniam’s presence in Colombo, on-the 19th and 20th March and the evidence of Subramaniam’s proctorto the effect that he retained Mr. Tampoe to act for Subramaniam.
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GU7STASEK AIRA J.—In re Kanagaratnam
That is to say, the only allegations contained in the appellants’ affidavitsthat were contradicted were those regarding the dates of the conversa-tions that the second and third appellants claimed to have overheard.Subramaniam himself did not give evidence and deny that there hadbeen such conversations or that he had been trying to sell V»i« houseand garden as alleged by the second and third appellants.
The first appellant, who gave evidence, said that he had acted oninformation given to him by the other two. The case for the secondand third appellants, who also gave evidence, was that the conversationsto which they deposed in their ^affidavits took place not on Sundaythe 19th March and Monday the 20th March respectively, but on theprevious Sunday and Monday, and that the draftsman of the affidavitshad misunderstood what they intended to convey. A business mannamed Kandiah and a broker, Nagarajah Chetty, gave evidence ofrequests which they said were made to them by Subramaniam in March,1950, to find a purchaser for the property referred to in the affidavits,and another broker, Ramapillai, also spoke to a similar request thatSubramaniam made to him. The appellants also adduced evidenceto show that at the material time Subramaniam was financiallyembarrassed. ■
The learned Judge disbelieved the evidence that there was a mistakein the affidavits regarding the dates and based upon his rejection ofthis evidence a finding that the three appellants had conspired to placebefore the Court false affidavits to the effect that Subramaniam wasin Jaffna on the 19th and 20th March, 1950. He did not hold that thestatements about the conversations that the second and third appellantsclaimed to have overheard were false. It seems to me that he oughtto have given his mind to the question whether it had been proved thatthese statements were false before he decided to reject the appellants’explanation of the dates given in the affidavits, and he ought to haveconsidered the bearing on that question of the evidence relating toSubramaniam’s financial position and the requests alleged to havebeen made by him to Kandiah and the two brokers to find a purchaserfor the property. It appears from his judgment that the learnedJudge has failed to appreciate the relevancy of this evidence to thequestion whether it was probable that the second and third appellantsoverheard such conversations as they say they did overhear. Regardingthis evidence the learned Judge says :“ Much time and more energy
have been spent by counsel for the accused to establish that thedefendant Subramaniam was making efforts to dispose of his own propertydining the whole of March and that he was heavily involved. He hascalled a number of witnesses and produced a number of documents inthis connection. The whole of this evidence can be made a present ofto the accused and it may even be conceded that that is so, but my viewis that this evidence is neither material to the issue involved in theseproceedings, the issue being ‘ are the specific averments in regard to the19th and 20th of March false or were they put down by a bona fidemistake ? ’ ”. I understand the word “ present ” to mean, in the context,a concession that the adverse party is able to make without damage tohis own case. The observation that “ the whole of this evidence can
GRATIAEIST J.—Leon v. Subbiah Pillai
425
be made a present of to the accused ” is not merely a misdirection asto the effect and bearing of the evidence but an indication that thelearned Judge did not appreciate that there was no adverse partyprosecuting the appellants.
In my opinion the learned Judge ought not to have tried these chargeshimself in view of the conclusion that he had already reached regardingthe guilt of the appellants ; and the conviction is bad both for thisreason and for the reason that he has misdirected himself as to the effectand bearing of the evidence on the issues before him.•
Gratia en J.—I agree.'
Appeals allowed.