055-NLR-NLR-V-02-MOHIDEEN-v.-NAMBIRALE-et-al.pdf
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MOHIDEEN v. NAMBIRALE et al.
P. C., AnuradAapura, 17,938.
1896.August 12and 1A
“ The Oaths Ordinance, 1895,” ss. 8 and 9—Derisory oath in criminal pro-ceedings—How far it binds the accused—Scope of the Ordinance incriminal matters.
Under “ The Oaths Ordinance, 1895,” when parties to civil-suitsagree to be bound by an oath, it is conclusive ; but it is not so incriminal proceedings.
So, where an accused party offered to he bound by a particularform of oath to be taken by a witness for the prosecution, held, thatthe Court was not right in accepting such offer and convicting theaccused on the evidence given on such oath.
If after evidence is taken on an unusual form of oath, an accusedperson asks to be allowed to withdraw his claim to be tried and toplead guilty, the Court may allow that plea to be recorded and thensentence him ; but so long as the claim to be tried stands, the Courtcannot convict except on sufficient evidence.
All that the Oaths Ordinance does, as to criminal proceedings, isto allow evidence to be given under the sanction of an oath more .particularly binding on the conscience of the witness than the oathor affirmation in ordinary use in our Courts. The effect of theevidence so given is the same as that given after the usualaffirmation has been taken.
HE accused in this case were charged with house-breaking by
night and theft. They claimed to be tried, and in the courseof the trial offered to be bound by the evidence of a witness for theprosecution, if such evidence was given under a particular form ofoath suggested by the accused. The Police Magistrate acceptedthe offer, and on statements made by the witness on the oathsuggested by the accused convicted them. The accused appealed.
Dornhorsl, for appellant.
August 17, 1896. Lawrie, J.—
As the Police Magistrate himself admits this charge of house-breaking by night with theft of property above Rs. 100 ought tohave gone before the District Court, the reasons which inducedthe Magistrate to hold that it could be dealt with by himsummarily are not recorded. I do not know what they were.
A strong case was made against the accused, and they werecalled on for their defence. Their Proctor re-called Banda, .a witness for the prosecution, when the accused said that ifBanda would swear on the Jetawanarama that he saw the threeaccused running away from the direction of the complainant’shouse, they were ready to undergo any punishment the Court mightaward. The Magistrate then sent the accused and the witnessBanda with the Kachcheri Moh’andiram to the Jetawanar&ma.The accused pointed out a spot where Banda should swear, andthen Banda, kneeling down, said : “ On the night of the theft I saw
• Cur. adv. vult.
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1890.
August 1Z ,and 19.
Lawbib, J.
“ these three accused [pointing out to them | running away from“ the direction of the complainant’s house. If what I say is not the“ truth, within seven days let me be struck with lightning: let“ me die.”
The accused said they were satisfied, and the KachcheriMuhandiram reported to the Court. .
The Magistrate thinks this was regular under the Ordinance No.
9 of 1895, section 9, and he holds that the oath of Banda must beheld to be (conclusive.
I am not of the same opinion. I th'nk that the performancevitiates the whole proceedings. – Certainly, it is in no way conclusive.'
The 9th section of the Oaths Ordinance provides that “ if in any“ judicial proceeding of a criminal nature the accused person desires“ that any' witness for the prosecution shall make any such oath“ or affirmation, the Court may, if it thinks fit, ask such witness or“ cause him to be asked whether or not he will make the oath or“ affirmation.” Such oath or affirmation refers to the 8th section.That is an oath or solemn affirmation in any form common amongst orheld binding, by persons of the race or persuasion to which he belongsand not repugnant to justice or decency.
The Magistrate has omitted to state whether Banda agreed totake an oath at Jetawanarama. I presume he said he was willing.The form of the oath was neither known to nor approved of bythe Magistrate. All he knew was that it was to be taken at thedagoba. The witness used such words and imprecations as hechose. The Magistrate holds that the evidence taken and thesanction on this oath is conclusive against the accused, but that Ithink is wrong. When parties to civil 6uits agree to be bound byan oath it is conclusive, but no conclusiveness is given in criminalcases. Here, no doubt, the accused offered to be bound, but thatoffer could not be accepted by the Court. If after the evidencetaken on unusual form of oath accused persons asked to withdrawtheir claim to be tried and to plead guilty, the Court might allowthat plea to be recorded and then sentence them; but so long asthe claim to be tried stands, the Court cannot convict except onsufficient evidence. All that the Oaths Ordinance does in thismatter is in certain cases to allow evidence to be given under «thesanction of an oath more particularly binding oa the conscience ofthe witness than the oath or affirmation in ordinary use in ourCourts. The effect of the evidence so given is the same as thatgiven after the usual affirmation has been taken.
The Police Magistrate has convicted the accused on the footingthat the evidence of Banda was conclusive. It was not so. I mustquash these proceedings.