092-NLR-NLR-V-64-RAMACHANDRAN-Appellant-and-THE-QUEEN-Respondent.pdf
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BASNAYAKE, C.J.—Ramachandran V. The Queen
1962Present: Basnayake, C.J., and Abeyesundere, J.
RAMACHANDRAN, Appellant, and THE QUEEN, RespondentS. C. 114(61—D. C. (Crim.) Colombo, 2038(18553
I Trial before District Court—Indictment—Withdrawal of a change or charges therein
not permissible—Criminal Procedure Code, ss. 202, 217 (1), 217 (3), 393.
,_) Criminal law—0,fences where knowledge is an ingredient—Burden of proof—
Forgery—Fabricating false evidence—Penal Code, ss. 190, 196, 403, 455,
459, 490.
In a criminal trial before a District Court there is no provision in Chapter
19 of tho Criminal Procedure Code for tho withdrawal of a chargo or chargesfrom tho indictment.,
Two accused were jointly indicted in a District Court on certain charges.Before the indictmont was road and explained to the accused, Crown Counselstated that tho evidence against the 2nd accused did not justify tho prosecutionproceeding against him any further. The District Judge thereupon made thefollowing order :—“ I acquit and discharge the 2nd accused ”, Thereafter thetrial proceeded against the 1st accused on amended charges.
Held, that the application not to proceed against the 2nd accused was notwarranted by the provisions of section 202 of the Criminal Procedure Code.'Section 202 only enables the prosecuting Counsel to withdraw the indictmentas a whole.
The accused was charged under sections 455, 459, 190, 196, 403 and 490of tho Ponal Co fie for using as genuine a forged Citizenship Certificate and forusing that certificate for the purpose of obtaining a Passport.
Held, that knowledge was an essential ingredient of the charges against theaccused and that the burden was on the prosecution to establish it.
Appeal from a judgment of the District Court, Colombo.
S. Kanagaratnam, for Accused-Appellant.
H. C. Jayetileke, Crown Counsel, for Attorney-General.
June 14, 1962. Basnayake, C.J.—
The accused-appellant who was charged in these proceedings as the1st accused along with another who was referred to as the 2nd accusedwas indicted on the following charges :—
“ 1. That you did between the 19th November 1959 and the 24thDecember 1959 at Colombo in the division of Colombo. within thejurisdiction of this Court agree to commit or abet or act together witha common purpose for or in committing an offence, to wit, using asgenuine a forged document, to wit, Ceylon Citizenship Certificatebearing No. 24635 and dated 24th November 1955 purporting to be acertificate issued under the provisions of section 16 (1) (b) of the Indian
BASNAYAiCE, C.J.—Mamachandran v. The Queen
513
and. Pakistani Residents (Citizenship) Act No. 3 of 1049 whichdocument you knew or had reason to believe to be a forged documentand that you are thereby guilty of the offence of conspiracy to committhe said offence which said offence was committed in consequenceof such conspiracy and that you have thereby committed an offencepunishable under section 459 read with sections 455, 113b and 102of the said Code.
“ 2. That at the time and place aforesaid and in the course of thesame transaction you the 1st accused abovenamed did fraudulentlyuse as genuine a forged document purporting to be a certificate madeby a public servant in his official capacity under the provisions ofsection 16 (1) (b) of the Indian and Pakistani Residents (Citizenship)Act No. 3 of 1949, to wit, Ceylon Citizenship Certificate bearingNo. 24635 and dated 24th November 1955, which you knew or hadreason to believe to be a forged document and that you have therebycommitted an offence punishable under section 459 read with section 455of the Penal Code.
“3. That at the time and place aforesaid and in the course of thesame transaction you the 2nd accused abovenamed did abet the com-mission of the offence set out in count 2 above which said offence wascommitted in consequence of such abetment and that you havethereby committed an offence punishable under section 459 read withsections 455 and 102 of the Penal Code.
“ 4. That at the time and place aforesaid and in the course of thesame transaction you the 1st accused abovenamed did in a declarationmade or subscribed by you and which declaration an Assistant Con-troller of Immigration and Emigration, a public servant, is authorisedin law to receive, to wit, an application for a Ceylon Passport dated21st December 1959 make the following statement touching pointsmaterial to the object of obtaining a Ceylon Passport, to ant, thatyou were a Ceylonese by Registration and that your registrationas a Ceylonese was by a Certificate of Registration bearing No. 24635which statement you knew or believed to be false and that you havethereby committed an offence punishable under section 196 readwith section 190 of the Penal Code.
“ 5. That on or about the 24th day of December 1959 at the sameplace aforesaid and in the course of the same transaction, you the 1staccused abovenamed did falsely represent to C. W. Siriwardene,Assistant Controller of Immigration and Emigration, that you werea Citizen of Ceylon by registration holding Ceylon Citizenship Certificatebearing No. 24635 dated 24th November 1955 and thereby fraudulentlyattempt to induce the said C. W. Siriwardene, Assistant Controller ofImmigration and Emigration, to deliver to you a Ceylon Passport toenable you to travel to India and that you have thereby committedan offence punishable under section 490 read with section 403 of thePenal Code.
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BASNAYAKE, C.J.—Ramachandran v. The Queen
“ 6. That at the time and place aforesaid and in the course of thesamo transaction as set out in count 5 above you the 2nd accusedabovenamed did abet the commission of the offence set out in count 5above which said offence was committed in consequence of suchabetment and that you have thereby committed an offence punishableunder section 490 read with sections 403 and 102 of the Penal Code.”
The case came up for trial for the first time on 10th May 1961. Onthat day it was reported that the indictment had not been served on the1st accused and that certain witnesses were absent; The Courtthereupon made the following order “ Trial postponed for 21.6.61.Be-issue indictment on the 1st accused and surety undertake to producethe 1st accused on 21.6.61. ” On 21st Juno 1961 when the case wascalled the Crown was represented by Crown Counsel and both accusedby then* respective counsel, but the trial was put off for 28th Juno as therewas a partly heard criminal case which, was likely to last the day. Thecase appears to have been postponed thereafter to 28th August 1961 andon that day the Crown was represented by Crown Counsel and therespective counsel for the 1st and 2nd accused entered their appearances.Before the indictment was read and explained to the accused, CrownCounsel stated that the evidence against the 2nd accused did not justifythe prosecution proceeding against him any further. The learned DistrictJudge thereupon made the following order :—“ I acquit and dischargethe 2nd accused
It is not clear under what provision of the Criminal Procedure Codeboth Crown Counsel and Judge acted. A right to do what the CrownCounsel did is not to bo found in Chapter XIX, but a provision (s. 217 (1) )enabling the Attorney-General to exercise such a power in proceedingsbefore the Supreme Court exists in Chapter XX. In effect Crown Counselwas seeking to enter a nolle prosequi which only the Attorney-Generalhimself has power to do (s. 393). The Judge acted wrongly in makingtho order ho did mako.
Thereafter tho minute on the record reads as follows :—
“ Mr. Crown Counsel withdraws counts 1, 3 and 6.
“ I allow tho application.
“ The indictment is read over and explained to the 1st accused whopleads not guilty.
“At this stage Mr. Crown Counsel moves to amend count 2 andcount 5 by inserting the word * October ’ in placo of the word‘ November ’ where it occurs in counts 2 and 5.
“ Mr. Crown Counsel moves to amend count 1 by inserting tho words' you 1 accd. did between tho 19th of Novembor 1959 and 24th Decem-ber 1959 at Colombo in the division of Colombo within tho jurisdiction
BASNAYAKE, U.J.—Ramachantlran v. The Queen
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of this Court you the 1st accused did fraudulently * at the commence-ment of. the charge in count 2 and to delete the words commencingfrom the ‘ That * in line 1 count 1 up to the word f transaction *.
** There is no objection by the defence.
“ Count 2 is amended accordingly and read and explained to 1staccd. who pleads not guilty.”
Thereafter the trial proceeded against the 1st accused on the followingcharges
" (a) That between 19th November 1959 and 24th December 1959at Colombo within the jurisdiction of this Court you tho 1st accusedabovenamed did fraudulently use as genuine a forged documentpurported to be a certificate made by a Public Servant in his officialcapacity under the provision of section 16 (1) (6) of the Indian andPakistani Residents (Citizenship) Act No. 3 of 1949, to wit: CeylonCitizenship Certificate bearing No. 24635 and dated 24th October 1955which you knew or had reason to believe to be a forged documentand that you have thereby committed an offence punishable undersection 459 read with section 455 of the Penal Code.
“ (b) That at the same time and place aforesaid and hi the courseof the same transaction you the 1st accused abovenamed did in adeclaration made or subscribed by you and which declaration anAssistant Controller of Immigration and Emigration, a public sorvantauthorised in law to receive, to wit: an application for a CeylonPassport dated 21st December 1959 make the following statementtouching points material to the object of obtaining a Ceylon Passportto wit that you were a Ceylonese by Registration and that yourRegistration as a Ceylonese was by a Certificate of Registration bearingNo. 24635 which statement you knew or believed to bo false and thatyou have thereby committed an offence punishable under soetion 196read with section 190 of the Penal Code.
c< (c) That on or about the 24th December 1959 at the same placeaforesaid and in the course of the same transaction you the 1st accusedabovenamed did falsely represent to C. W. Siriwardena, Asst. Controllerof Immigration and Emigration to deliver to you a Ceylon Passportto enable you to travel to India and that you have thereby committedan offence punishable under section 490 read with section 403 of thoPenal Code.”
There being no other accused it is not dear why the words “ 1st accused ”were retained in the indictment after the 2nd accused had been dis-charged. The accused was at its conclusion found guilty on all thecharges and sentenced to a term of six months’ rigorous imprisonmenton each of the counts, the sentences to run concurrently. On count 5he was sentenced to a term of three months’ rigorous imprisonment.This appeal is from those convictions.
610BASNAYAKE, C.J.—Ramachandran v. The Queen
Crown Counsel submits that the application not to proceed againstthe 2nd accused was an application made under section 202 of the CriminalProcedure Code. That section reads as follows :—
“ The Attorney-General may at any time before the verdict isrecorded withdraw any indictment and the prosecuting counsel mayalso with the permission of the District Judge at any time before theverdict is recorded withdraw any indictment, and thereupon all. proceedings thereon shall be stayed and the accused shall bedischarged.”
If what learned Crown Counsel purported to do at the trial was to seekthe permission of the 06urt and with its permission withdraw the indict-ment, thon the learned District Judge should have made order stayingall proceedings on the. indictment and discharging both accused. Thereis no provision in proceedings under Chapter XIX of the Code for thewithdrawal of a charge or charges as was done in this case. In trialsunder Chapter XX of the Code section 217 (3) provides that—
“ The prosecuting counsel may with the consent of the presidingJudge at any stage of the trial before the return of the verdict with-draw the indictment or any charge therein and thereupon all proceed-ings on such indictment or charge as the case may be against the accusedshall bo stayed and he shall be discharged of and from the same.”
The power conferred on prosecuting counsel by section 217(3) of theCriminal Procedure Code to withdraw with the consent of the presidingJudge any charge is not conferred by section 202. The learned DistrictJudge therefore acted wrongly in proceeding as he did. He had no powerto grant permission to withdraw a charge in the indictment. The sectiononly enables the prosecuting counsel to withdraw the indictment as awhole.. ‘
The main point argued by counsel for the appellant is that knowledgeis an essential ingredient of the charge against the appellant and thatthe evidence for the prosecution failed to establish it. The documenton which the prosecution relied for the purpose of establishing knowledgeis P2 which is the Certificate of Registration and which is in English.Thero is no evidence that this document was explained to the accused-appellant by the Proctor who attested the document PI which is anapplication for a Passport signed by the appellant. The appellantwho gavo evidence on his own behalf stated that he first met tho 2ndaccused casually at the trolley bus stand and in the course of conver-sation he gathered that he was able to help him to obtain CeylonCitizenship and that he went to see him on a number of occasions, andthat he signed some forms in consequence of which he received thedocument P2 which he used for the purpose of obtaining a Passport.Tho accused was not cross-examined in regard to this document. Theingrodient of knowledge required for a conviction on a charge of which theappollant has been found guilty, hr our opinion, has not been established.The charge against the appellant therefore fails.
TAMBIAH, J.—Senanayaka v. Qatnage
5X7
There is nothing on the record to show why at the last moment theprosecution did not proceed against the 2nd accused against whomthere is evidence in the record before us.
We quash the conviction and acquit the accused.
Abeyesundere, J.—I agree..
Appeal allowed.