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ISABEL v. PEDRU PILLAI.P. C., Mullaittivu, 1,429.
Maintenance case—False and frivolous charge of adultery against wife—Orderon husband to pay Grown costs—Summary conviction of witnesses forgiving false evidence under s. 190 of Penal Code—Illegality of orders.
In a case of maintenance, in which the proceedings are of a guestcivil nature, a Police Magistrate has no power to condemn the husbandto pay Grown costs for bringing a false and frivolous charge of adulteryagainst his wife.
Nor has the Magistrate jurisdiction to summarily try a witness upona charge of giving false evidence under section 190 of' the Penal Code.
HE complainant applied for maintenance on the ground thatshe, being the wife of the accused, and her child, being his-
child, were left destitute ■ by him. The Police Magistrate (Mr. L.W. C. Schrader) ordered the accused to pay her Rs. 7.50 per month.After paying two monthly instalments- the accused complained tothe Court that since the date of the order for maintenance hiswife had been living in adultery with, another man. Evidencewas heard, and the Magistrate called on the accused to show causewhy he should not be punished by being ordered to pay Crowncosts for bringing a false and frivolous charge. No cause wasshown, and the Court ordered him “ to pay Rs. 5 as Crown costs,with the alternative of fourteen days simple imprisonment.”
The Court also framed a charge of giving false evidence, undersection 190 of the Penal Code, against two of the accused’switnesses, and fined each of them ” Rs. 10, with the alternative ofone month’s rigorous imprisonment.”
The Magistrate, in due course of business, reported the fine tothe Colonial Secretary as having been made under section 440 ofthe Criminal Procedure Code.
Rdmandtiian, S.-G., on behalf of the Crown, moved theSupreme Court in revision, as no appeal lay against any order forpayment of Crown costs. He cited section 198, Criminal Procedure-Code, and P. C., Balapitiya, 20,320 (I Browne 47); P. C., PointPedro 2.210 (2 N. L. R. 60); and contended that the orders as tothe payment of the fine were not justified by law.
Cut. adv. vult.
25th September, 1902. Grenier, A.J.—
The Solicitor-General made an application to me to consider inrevision certain proceedings heard by the Police Magistrate atMullaittivu in P. C., Mullaittivu, 1,429. These proceedings began
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on the 28th August, 1902, and were founded upon a petitionpresented by the accused, who had been condemned to pay main-tenance to his wife, in which he charged her with havingcommitted adultery with one Bandar Vallipuram, and on thatground he asked to be relieved from further maintaining her.It was competent, of course, for the Magistrate to hold such aninquiry as the accused desired, under section 6 of the Main-tenance Ordinance of 1889. Accordingly, several witnesseswere examined by the Magistrate, and in the result he held thecharge of adultery to be vexatious and frivolous, and called onthe petitioner “ to show cause why he should not be punished bybeing ordered to pay Crown costs for bringing a frivolous andvexatious charge.” The accused showed cause in the followingstatement: “ I am unable to pay the fine. I want to retain aproctor, or I want to appeal.” Thereupon the accused wasordered to pay Bs. 5 Crown costs, or in the alternative to undergofourteen days’ simple imprisonment.
Then the Magistrate appears to have framed a charge againsttwo of the witnesses, Swampulle Philipu and Antho Pedru, undersection 190 of the Ceylon Penal Code, for intentionally givingfalse evidence, and to have fined each of them Bs. 10, with thealternative of one month’s rigorous imprisonment.
Obviously aU these proceedings were grossly irregular frombeginning to end. The Magistrate had no right in this case, inwhich the proceedings are of a quasi civil nature, to imposeCrown costs, .and there is clear authority in a case reported in2 N. L. B. 60, that Crown costs cannot be imposed in maintenanceproceedings. That was a case in which it was held that an appli-cant for an order of maintenance cannot be condemned in Crowncosts, and as a necessary corollary it follows that the accused, too,cannot be condemned.
As regards the fine imposed on the two witnesses, it is clearthat the Magistrate had no jurisdiction at all in the matter. Thecharge he framed against them was a charge under section 190,and a Police Court has no jurisdiction to summarily try an offenceunder this section.
My order will be that all the proceedings beginning from thestage where the accused was called upon to show cause why heshould not be punished, Ac., be quashed, and the fine imposed onthe accused as Crown costs, and on the two witnesses be remitted.
ISABEL v. PEDRU PILLAI