015-NLR-NLR-V-35-KING–v.-DAVID.pdf
KOCH AJ.—King v. David.
103
1933Present: Koch AJ.
KING v. DAVID.
194—D. C. Colombo, 45,517.
Oaths Ordinance—Summary punishment for perjury—Procedure to befollowed—Ordinance No. 9 of 1895, s. 12.
Where a District Court deals with a witness summarily for givingfalse evidence under section 12 of the Oaths Ordinance, the reasonsgiven for doing so must follow upon and be subsequent to the expls-nation furnished by the accused.
The person charged should be confronted with the specific statementson which the charge is based and should be called upon to show causewhy he should not be convicted and, thereafter, if no cause is shown,the Court should find which of those statements is false and record itsreasons.
^ PPEAL from a conviction by the District Judge of Golombo.
L. A. Rajapakse (with him Atulathmudali), for defendant (witness),appellant.
H. H. Basnaydke, C.C., for Crown, respondent.
September 12, 1933. Koch A.J.—
The appellant in this case, who is the defendant in D. C., Colombo,No. 45,517 (Civil), was convicted by the learned District Judge undersection 12 of the Oaths Ordinance, No. 9 of 1895, of perjury as for acontempt of Court and was sentenced to pay a fine of Rs. 50. Thecircumstances under which the appellant was convicted and the procedureadopted are very material.
The learned District Judge, after dealing in his judgment with thefacts of the case he was trying, proceeded in concluding his order to“call upon the appellant to show cause why he should not be punishedfor contempt of Court committed by his falsely stating—
that the lorry was in Julis’ possession on August 3,
that the profit went to Carolis and he was paid Rs. 2 a day,
that he knew nothing about the payment of instalments on the
hire purchase agreement.
I shall confine myself to these three points, though there are numbersof others.
The defendant states ‘I did not state any falsehold’. I do notaccept his explanation.” The above passages, which I have quotedverbatim are taken from the concluding portion of the District Judge’sjudgment. I may be quite prepared to agree, that the learned DistrictJudge was very justifiably exasperated by statements made by theappellant in the course of his evidence before him and whose conductin his opinion deserved to be condemned and the wrong-doer punished,
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KOCH A.J.—King v. David.
but the law is very strict as to the procedure that should be adopted insuch a case, and it is very necessary to see that the requirements of thelaw have been duly complied with.
The trial Judge in such a case may take steps to see that the allegedperjurer is tried under section 190 of the Ceylon Penal Code, in whichcase the evidence alleged to be false has to be proved to be so. He mayin the alternative, as the learned District Judge purported to do in thiscase, deal with the culprit under section 12 of the Oaths Ordinancewhich corresponds to section 440 of the Criminal Procedure Code, but inadopting the latter course he must be careful to see that the steps whichhave been considered necessary by law .should be taken in due order.In the first place, considering that the offence is punishable with rigorousimprisonment on failure to pay a fine, one would be inclined to thinkthat the witness should not be called upon to plead in the course ofdelivering the judgment, but that after the judgment is concluded theCourt as a separate step should charge him with the specific statementson which the Court is relying, and that the person charged should nextbe confronted with these statements and asked to show cause, if any,why he should not be convicted, and thereafter if no cause, is shown orthe cause shown is in the opinion of the Judge valueless the Court mustfind which of these statements is or are false and should record thereasons for so finding. The latter requirements in any event have beenheld to be absolutely necessary when this power is excerised by Courtsother than the Supreme Court.
In Sivakolunthu v. Chelliah1 Wood Renton J. states that althoughhe had no sympathy with mere technical objections, and although hewas prepared to interpret the section in a wide sense, he was at the sametime not prepared to waive any of the requirements by which the Legis-lature and the Supreme Court have safeguarded the exercise of thepower conferred on legal tribunals under section 12 of the Oaths Ordinanceor section 440 of the Criminal Procedure Code. No doubt under thissection the perjurer can be summarily sentenced, but that is all the morereason for insisting that whatever requirements have been laid downshould be very strictly complied with.
This view has so conspicuously commended itself to Drieberg J. thatHis Lordship in a recent case, Dewaya v. Bilinda,* specifically drew theattention of the lower Court to it. In the course of his judgment heobserved that it was necessary that the Court should be of opinionnot merely that the evidence of a witness was generally false or unreliablebut that specific statements made by him are false.
Now in the case before me all that the learned District Judge says is“I do not accept his explanation”; no reasons are given nor is thelearned Judge specific in regard to which particular statement of thethree referred to was the explanation not acceptable. The learnedCrown Counsel who appeared in support of the conviction argued thatthe explanation was not presumably acceptable as to each and all thethree statements. My answer to this firstly is that the requirementsare strict and there should be no inferences, secondly, to take only one113 N. L. R. 289.‘ 6 C. L. R. 122.
Kandappa v. Arupalavanam.
105
such statement, “he knew nothing about the payment of instalmentson the hire purchase agreement If these were the exact words of thewitness—I am assuming that the translation from Sinhalese to Englishwas meticulously correct if the witness gave his evidence in the vernacular—the meaning or implication may be either that the witness did notknow of even the existence of a hire purchase agreement and consequentlywas not aware of payments, or that he knew of the bare fact that anagreement was entered into but was deplorably ignorant of what paymentshad to be made and whether any of them had been actually made. Allthis requires investigation and discrimination and has ex fade not beendone in this case. The learned counsel also argued that the reasons for notaccepting the explanation had been given in the course of the judg-ment. I have already indicated that it was the. concluding portionof the judgment that dealt with the appellant so far as this charge wasconcerned. The reasons contemplated in section 440 (1) of the CriminalProcedure Code or section 12 of the Oaths Ordinance must follow andtake place subsequent to the accused being called upon and after con-viction. If reasons have at all been given, they precede this step andwere substantially necessary for arriving at a conclusion on facts raisedby the issue at the trial of the civil case, and not for supporting aconviction for prejury which was contemplated later.
For these reasons the conviction must be set aside and the appellantacquitted.
Set aside