v- uTHE STATE
COURT OF APPEALYAPA, J. (P/CA)
HC COLOMBO 5483/93
Penal Code – S. 188, SACK), S.459 – Forged permit to obtain spirits -Prosecution witness giving false evidence In court – Code of CriminalProcedure Act 15 ofF979, S. 195(e), S.448(l) S.449, S.449(l)- Conviction- Procedure to be followed opportunity to be given to defend -Constitution Article 13(3).
The Appellant – was a witness for the prosecttion In the High Court ofColombo, at the trial of one "R" who was indicted under S.459 and S.400of the Penal Code.
In the course of the trial an application was made by the State to deal withthe Appellant in terms of S.449 of the Code of Criminal Procedure Act forgiving false evidence in Court. There upon the Trial Judge proceeded toact in terms of S.449 and convicted him for contempt of Court.
It was contended that
there was no proper charge
that trial Judge failed to follow the correct procedure
the Appellant was not given an opportunity to retain Counsel orsufficient time to prepare his evidence.
It is a basic requirement of the Criminal law that the accused shouldbe made aware of the charge levelled against him.
In a case 'where the allegation against a witness was that he gave falseevidence, the proper time at which such witness should be dealt within terms of S.449(l) is upon the conclusion of the main trial.
(ill) When a witness in a High Court trial is dealt with in terms of S.449he should be afforded die facility of availing himself of the servicesof an Attorney at law, and further sufficient time should be given tohim to prepare his defence.
Kumarasinghe v. The State
Appeal from an order of the*High Court of Colombo.
Cases referred to:
Gunapala vs. Attorney-General – 2000 2 SLR 130.
Queen vs. Piyadasa – 67 NLR 481.
Subramaniam vs. The Queen – 60 NLR 25.
Daniel Appuhamy vs. The Queen – 64 NLR 481.
Chang Hang Kiu vs. Piggot – 1909 AC 312(S.C)
Sameen vs. The Bribery Commissioner – 1991 1 SLR 76.
Godage and Others vs. OIC Police Station, Mahawatte – 1992 1SLR 54.
Coorey vs. Ceylon Para Rubber Co., Ltd., 23 NLR 321 at 326.
K.S. Tilakaratne for Accused-Appellant.
Priyantha Nawana S.C. for the Attorney-General.
cur adv vult.
January 29, 2001KULATILAKA, J.
The appellant in this case Mervyn C. Kumarasinghe was awitness for the prosecution in the High Court of Colombo caseNo. 5483/93 at the trial of Madduma Hewage Ratnatilaka whowas indicted firstly, for using as genuine a forged document towit, a forged permit to obtain rectified spirits from the ExciseDepartment, an offence punishable under Section* 459 of thePenal Code and secondly, for cheating by personation an offencepunishable under Section 400 of the Penal Code.
In the course of the appellant’s evidence the prosecutingState Counsel made an application requesting the Court to dealwith the appellant in terms of Section 449 of the Code of CriminalProcedure Act No. 15 of 1979 for giving false evidence in openCourt. Thereupon the learned trial Judge proceeded to act interms of Section 449 of the Code of Criminal Procedure Act and
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by his order dated 05. 07. 96 convicted the appellant forContempt of Court and sentenced him to a term of two yearsrigorous imprisonment. This appeal is against that convictionand sentence. Apparently in the main case the accused wasacquitted on both counts for the reason that there wasreasonable doubt as to the identity of the accused.
The learned counsel for the appellant in his endeavour toImpugn the order of the learned trial Judge urged the followinggrounds: namely,
that there was no proper charge against the appellant.
that the learned trial Judge failed to follow the correctprocedure as laid down in a series of cases when hepurported to act in terms of Section 449 of the Code ofCriminal Procedure Act.
that the appellant was not given an opportunity to retaincounsel or sufficient time to prepare his defence.
The learned counsel relied upon the judgment of this Courtin Gunapala vs. The Attorney-Generalm. The learned StateCounsel in his submissions cited Queen vs. Piyadasa'21,Subramanlam vs. The Queen'31, Daniel Appuhamy vs. TheQueen'41, Chang Hang Kiu vs. Piggof5’.
The appellant was an Excise Inspector attached to theExcise Department. Adducing evidence in respect of thedocument V2 at the examination-in-chief, the appellant’sposition was that the accused Madduma Hewage Ratnatilakepersonally handed over the document marked P2 to him. Albeit,whilst being cross-examined when he was confronted with hisown document marked V3 by the defence he changed hisoriginal stand and testified that it was one B.S. Perera whohanded over the document to him and the accused Ratnatilakawas present in the vicinity. It was at that stage the learned StateCounsel invited Court to deal with the appellant under Section449 of the Code of Criminal Procedure Act No. 15 of 1979.
Kumarasinghe v. The State
Thereupon the learned trial Judge having examined theappellant again, merely asked the appellant to show cause whyhe should not be dealt with for Contempt of Court for givingfalse evidence. In Daniel Appuhamy vs. The Queen(supra) at483 and 484 the Lord Chancellor delivering his judgment washighly critical of such procedure adopted by the Court in thatcase.
It must be borne in mind that Section 448 of the Code ofCriminal Procedure Act deals with a case where a witnesscontradicts either expressly or by necessary implication theevidence previously given by him at the inquiry before theMagistrate, in which case the witness will be arraigned and triedon an indictment. This does not mean that since there is nosuch provision laid down in Section 449(1) a formal chargeshould not be framed and read out to a witness who is to becharged in terms of Section 449 of the said Act which entailspenal consequences. It is a basic requirement of the criminallaw that an accused should be made aware of the charge levelledagainst him. In this regard vide Sameen vs. The BriberyCommissioner,6>, and Godage and Others vs. OIC Police StationKahawatte(7,. At the argument the learned State Counsel quiterightly conceded that there was no proper charge framed againstthe appellant.
It is to be observed that Section 449 of the said Act is silentas regards the time at which a witness should be dealt with forgiving false evidence in open Court. The expression “summarilyto sentence such a witness” refers not to the tim9 but to thenature of the proceedings. Vide De Sampayo, J. in Cooray vs.Ceylon Para Rubber Co.. Ltd.,181 at 326.
In Gunapala vs. The Attomey-Generalfsupra) this Courthaving considered the judgment in Cooray vs. Ceylon ParaRubber Co., Ltd.,(supra ) and the provisions of Section 448(1)of the Code of Criminal Procedure Act has expressed the viewthat in a case where the allegation against a witness was thathe gave false evidence at the High Court trial within the meaning
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of Section 188 of the Penal Code the proper time at which suchwitness should be dealt with in terms of Section 449( 1) is uponthe conclusion of the main trial and tSiat such a procedure wouldnot in any way prejudice the case against the prosecution orthe defence on the main case. Further it is likely to render moreapparent the falsehood of any statement.
Further it appears from the proceedings that the appellantwas not given sufficient time to avail himself of the services ofan Attomey-at-Law. Learned counsel referred us to Article 13(3)of the Constitution as well as the provisions of section 195(g) ofthe Code of Crimipal Procedure Act. This Court has consideredthis issue in Gunapala vs. Attomey-GeneraKsupra) at page135 and has expressed the view that when a witness in a HighCourt trial is dealt with in terms of Section 449 of the Code ofCriminal Procedure Act he should be afforded the facility ofavailing himself of the services of an Attorney-at-Law. In additionwe also hold the view that sufficient time should be given to himto prepare his defence.
For the aforesaid reasons we are of the considered viewthat the impuged proceedings are invalid. Hence we set asidethe conviction and sentence and proceed to acquit the appellant.
HECTOR YAPA, J.(P/CA) – I agree.