( *58 )
Present: Drieberg A.J.
JAMALDEEN v. CABUPPEN99— P. C. Hatton, 4,566.
False information—Statement under section 122 (I) of Criminal ProcedureCode—Answer to questions by police officer—Penal Code, s. 180.
Statements made under section 122 (1) of the Criminal ProcedureCode in answer to questions put by a police officer may be made thesubject of a charge under section 180 of the Penal Code.
PPEAL from a conviction by the Police Magistrate of Hatton.
The appellant was charged with having given a sergeant ot
the Hattqn police information, which he knew to be false, namely,that his house had been broken into and Bs. 75 stolen from it by threecoolies whom, he suspected, intending the said police sergeant to usehis lawful powers as a public servant to .the injury and annoyanceof .the said coolies. The complaint was in the first instancemade to the superintendent of the estate in which the appellant was
( 459 )
employed; The superintendent) sent a message to police, whereupon i9Sff.the police sergeant arrived and made inquiries, in the course of which r—(f|^trflf, Vtthe appellant made the statement which formed the subject-matter Oaruppmof the charge. The learned Police Magistrate held that the storyof the theft was a fabrication and convicted the accused. Heheld further that the statement made to the police sergeant was onefalling under section 121 (1) of the Criminal Procedure Code;
James Joseph. for accused, appellant.
R. F. Dias, G.G., for respondent.
April 27, 1927. Drieberg A.J.—
This appeal was argued on March SO when there was no appear-ance for the respondent.' As the question involved was one ofimportance I directed that notice be given to the Attorney-General,and there was further argument on April 12, when the respondent wasrepresented by Crown Counsel.
The appellant was charged with having given to Sergeant Jamal-deen of Hatton police information which he knew to be false,viz., that his house had been broken into and Bs. 75 stolen from itand that he had reason to suspect that three fellow-coolies were theculprits, intending the said Jamaldeen to use his lawful powers as apublic servant to the injury and annoyance of the said coolies, anoffence punishable under section 180 of the Penal Code. He wasconvicted and sentenced to six months' rigorous imprisonment andhas appealed.
The learned Police Magistrate has held; and I agree with him,that the story of the theft was a pure invention of the appellant;The superintendent of the estate had ordered the three coolies tosearch the lines for stolen estate tools and the appellant’s room wassearched. The appellant apparently resented this and made acomplaint to the superintendent, Mr. Newton, the terms of whichare not known as Mr. Newton did not give evidence, but Mr. Newtontelephoned to the police and Sergeant Jamaldeen, who received themessage, says it was to the effect that the appellant had informedthe superintendent that the three coolies had broken into hishouse.
Sergeant Jamaldeen went to the estate and made inquiries. Hewas there told by the appellant that people had entered his rooiriby scaling a wall, that they had broken the padlock of his box andremoved Bs. 75; he said that the three coolies, Kathen, Sinnasamy;and Kadiravalai, were suspected, but that his only reason forsuspicion was that they had been sent by the superintendent tosearch for estate tools.
( )198T** There had been in fact no theft; – the padlock of tile box, which
D—was in order, showed no signs of violence, and'the appellant then-'A&r'- said that the money had been taken from another box by meadsrmffitftrn e. a false key. He said that- the Its. 75 stolen' was all the moneyCaruppen be had, but it was found that he had Rs. 75 concealed in a provisionbox. As a result of the appellant’s statement the rooms of thethree coolies were searched and they were taken before thesuperintendent and to the police station.
The story of the theft having been fabiicated by the appellant,and it having been indicated by him, with the intention of causingthe police to act to their injury and annoyance, that he suspectedthe three coolies, all the necessary elements of an offence undersection 180 exist. The learned Police Magistrate, however, wasconfronted with a difficulty- arising out of some .observations ofJayewardene J. in. Sub-Inspector of Police v. Babb} £h$t statementsmade in the course of an investigation under section 122 of ..theCriminal Procedure Code could not. be made the foundation of.-acharge under section 180 of the Penal Code. He. held, however,that the statement to the sergeant was one falling under section 121(1) of the Criminal Procedure Code, and was not a statement madein the course of an investigation under section 122, and that itcould, therefore, be. made the subject of a charge under section J80of the Penal Code.. Having regard to the practice on estates in thedistrict, of coolies not appealing to. the police iii the first instancebut' of placing their complaint 'before the superintendent, heconsidered the complaint, to ,Mr. Newton as a request by the appel-lant that Mr. Newton should get the police to the estate to receive andRecord his complaint. Such a case would be indistinguishable frompue*wfcere a man sent-his servant or a friend to the police- stationwith , a request that a police officer should be sent to him to hear adomplaint he had to make; the statement made to the police officerwould in my opinion be the first complaint, and if false-would rendertoe maker liable to a prosecution under sectiofi’ 180 or section 208 ofthe-Penal Code. In faet* if the'offence complained of be a cognizableone^the-complainant would by making it be setting the criminal lawin motion against the person accused. But what distinguishes thepresent case is that there is no evidence that the appellant asked■Mr. Newton to send for the police. Further, I do not understandthat the practice referred to imposes on the superintendent anpbligatipn to communicate , with. the,, polic.e, for I assume that asuperintendent would use his discretion in the-matter, but in thecase -of Jonnalgadda v. V er^katrayaiu a the information was givento a village Magistrate, who was bolmd by law-to pass it on to a■Station. House Officer. For thfese reasons 1 do not agree with :theWarded* Police Magistrate that the statement'made by the appellant
1 (1923) 25 N. L. 111.8 2% Mad. 565.
( m )to the:sergeant when. he mad.e his inquiry on Hie "estate was ope 1907.falling under section 121 (1) .of the Criminal. Procedure Codev, JEt x>»meBoremains to be considered; whether the appellant can be convicted A^“.under section 180 of the Penal.. Code if his statement falls undersection 122 of the Criminal.Prooedui'e Code.Oamppm
. In Sub-Inspector of Police v. Babbi (supra) the false statementwas in an initial'complaint under section 121. The Police Magistrateacquitted the accused on the ground that the change should havebeen laid under section 208 of the Penal Code. The Supreme Courtheld that.the charge net -being:.a serious one the accused should: betried summarily under-section 180 and/Ordered a new trial*. Thequestion whether a: statement..made 4n the course of- an investigationunder (Section 122. could form, the: foundation of a charge under section180 of. the Penal Code was, not a point which presented itselffor deoisiont
The proviso to section 122 (8) of the Criminal Procedure Codawas enacted ! to relax in two cases the limitations imposed by section122 (8). 'The first case.is that of a statement made to a police officer ,under,..section 122 which ..would, be admissible 'under sedtipft32, (i) i,of,., the Evidence Ordnance, but which is renderedinadmissibie by section 122. (3) if .made tea police officer in' aninvestigation under section 122.
The second case is where the statement is a faifae Informationconstituting an..offence.under section 180 of the Penal Code, hi whichcase it can ba used as. evidence in the charge, and I Cannot see hOwthese, words, can limit its use to a. collateral purpose bifly such egto corroborate th$ evidence a. witness has given in a prosecution.under section ISO.,….•
Mr. Joseph contended that the words “ such statement 99 in-thelast sentence of the proviso meant such statements as fall Within.seption . 32 (1) of the Evidence Ordinance, but the practical
application of this'construction is not easy to follow.
‘ • ^1. • . *’ * ‘. … _ • . •] .
It* was also said that, section 180 was; limited to information givenvoluntarily, and that there was no offence where the statementswere, mad&'ift answers in which' the person interrogated, was bound,by law to answqr ;tiaithfully. Reference was made to a passage inDr.:Cfaut%&.PenalJn$ia, 3rd ed.,p. 926, where it is statedthat answers to a police officer under section 161 of the IndianCriminal Procedure Code do not constitute the giving of information
-by ’ sbction 182 of" the Indian. Penal Code, winch
correspondS^te oib section 180; this-observation is based on aBurma case, the report of which is not available. In Thampu v.
ogan>;de Semp&yo J. adopted the principle laid down in Qour;*in that case the false statement was made by a person who0the
V(I$ZS) J?.£*Nfi. 69.
( 402 )
injured man said Imd seen him stabbed, and it was made to aheadman; it was not one made under section 122 of the Code, andthe effect of the proviso to section 122 (3) was not considered.There is also the case of The Emperor v. Naga Aung Potl referredto by Jayewardene J. in his judgment in Sub-Inspector of Police v.Babbi (supra), in which it was held that the expression “ give infor-mation ” means volunteering information and does not extendto answers given to questions put by a public servant. Thereport of this case is not available.
Very little purpose is served by an examination of the Indian lawon this point owing to the very great points of differencebetween the Indian and Ceylon enactments, of which it is notnecessary to state more than one namely, that there.is no expressprovision in the Indian Criminal Procedure Code enabling statementsmade to police officers in investigations under section 161 to be usedin evidence in a charge under section 182 of the Indian Penal Code.It should also be noted that whereas our section 122 (2) requires aperson questioned to answer truly all questions put to him, the wordtk truly ” is omitted from the corresponding section of the IndianCriminal Procedure Code, with the result that there is in India nolegal obligation on a witness to speak the truth in a police investi-gation, except possibly in the limited cases mentioned in section 202and 203 of the Indian Penal Code. Sohonifs Criminal Procedure Code,10th ed,t p. 352.
The fact that a statement was made in answer to questions mayin many cases lend strong support to a defence that it was madebona fide and with no ulterior motive, hut I find it difficult to holdthat; in no circumstances can statements made under section 122,in answer to questions, form the basis of a charge under section 180when there is express provision . that such statements can be givenin evidence in a charge under-that section..
If this is so it will be possible for a person to arrange for the initialcomplaint under section 121 (1) to be given by another; thisinformation might be limited to a bare statement of the commissionof the offence without mention of persons charged so as not tocompromise the informant; and thereafter falsely charge personsat the police investigation, with immunity from prosecution undersection 180; it may rightly be said that a statement made in-thesecircumstances is voluntary.
As I am of opinion that the conviction is right if the statement heregarded as one made under section 122, I dismiss the appeal.