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SILVA et al. v. JONNA.
P. C., Avissawella, 2,801.
Criminal Procedure Code, e. 440—False evidence—Contempt of Court—
It is irregular to call upon several witnesses en masse to show causewhy they should not be punished for giving false evidence. Theproper course is to call the attention of each to the particular statementhe had made, and to give him an opportunity to explain it.
It is the duty of the Magistrate to give his reasons for holding thateach of the accused told a deliberate untruth.
N this case the complainant and four of his witnesses were
called upon in a body to show cause why they should notbe punished for giving false evidence, and they were collectivelyfined as for contempt of Court under section 440 of the CriminalProcedure Code. The Police Magistrate found that they gavefalse evidence within the meaning of section 188 of the PenalCode, in the course of a trial of certain persons charged with thetheft of a hackery belonging to the complainant.
On appeal, Dornhorst, for appellant.
29th July, 1899. Withers, J.—
The appellants were asked to show cause why they should notbe punished for giving false evidence. What opportunity wasactually given to them for showing cause is not very clear. Notone of these persons said anything in answer to the charge, but itis recorded that the complainant’s proctor argued that it would bevery inconsistent on the part of the Police Magistrate to hold thatthese witnesses were not telling the truth about the hackery, whenhe accepted their evidence above the bull found with the hackeryand convicted the accused in that case (who is the same as thepresent accused) on their evidence. [After dealing with the meritsof the case, his Lordship continued.] The 440th section of theCriminal Procedure Code is with one slight exception a repetitionof the Oaths Ordinance of 1895, and it seems to me that theMagistrate exercised an improper discretion in dealing with theappellants in this case as be has done.
If, as the Magistrate believes, the complainant suborned thesewitnesses to swear that this cart was his, and they supported himin this perjury about the hackery, they deserve a far greaterpunishment than the Magistrate has thought fit to impose. Heought to have sent the record to the Attorney-General, or to havesent the case for inquiry to the nearest Police Court.
It was moreover, irregular to call upon these five personsen masse to show cause why they should not be punished for
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telling a lie. They did not join in swearing to a common lie.Each should have had his attention called to the particularstatement he had made, and which the Magistrate regarded as adeliberate untruth, and have been asked if he could explain it.Besides, the Magistrate has given no reasons for his opinion thateach of these persons told a deliberate untruth. This the 440thsection requires.
I feel bound to quash these sentences.
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