SUB-INSPECTOR OF POLICE v. BABBI

027-NLR-NLR-V-25-SUB-INSPECTOR-OF-POLICE-v.-BABBI.pdf


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Present: Jayewardene A. J.1923.
SUB-INSPECTOR OP POLICE v. BABBI.359—P. C. Avissawella, 5,490.
Penal Code, ss. 180 and 208—No essential difference between the twosections—Section 180 does not apply to information elicited byexamination of a person by the police officer or public servant—Information should be voluntarily given—Criminal ProcedureCode, s. 122 (3).
“ The offence under section 208 of the Penal Code includes anoffence under section 180. It is therefore open to a Magistrateto proceed under either section, although in oases of a more seriousnature it may be the proper course to proceed under section 208.”
There are some distinctions between sections 180 and 208 ofthe Penal Code. Under section 180 the prosecution must provethat the person who gave the information knew or believed it to befalse, that he had a “ positive knowledge or belief of the falsityof the information given,” while under section 208 the prosecutionneed only prove that the accused knew that there was no just or
> (1901) 5 N. L. R. 165.* 6 W. R. (Civil Ref.) 14.
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1028.
Sub•Inspectorof policev• Babbi
lawful ground for the criminal proceeding or false charge. Aprosecution under section 180 cannot be instituted except withthe sanction of the Attorney-General, or on the complaint of thepublic servant concerned. An offence under section 180 is triablesummarily, while an offence under section 208 is an indictableoffence.
But there is no essential difference between the two sections,and offences punishable under section 208 are also punishableunder section 180, provided it can be proved that the informationgiven is false to the knowledge or belief of the informant. TheCourt has to exercise its discretion whether it should proceedunder section 180 or section 208. In simple cases, it is said, theprosecution should be under section 180. Section 180 only appliesto information voluntarily given to a public servant. It does notapply to cases where the information is disclosed in the course ofthe examination of a person by a police officer or other publicservant, especially when the person examined is bound by lawto “ answer truly ” all questions put to him.
The prohibition contained in section 122 (3) against statementsto a police officer, or inquirer, being admitted in evidence, exceptfoi the purposes specified therein, applies oniy to statements madeby witnesses examined by a police officer, or inquirer, who arebound to “ answer truly ” all questions put to them. It has noapplication to the information relating to a cognizable offencegiven by an informant and recorded in “ The Information Book ”under section 121 (1).
The proviso to section 122 (3) that “ nothing in this sub-sectionshall be deemed …. to prevent suoh statements beingused as evidence in a charge under section 180 of. the Ceylon PenalCode ” cannot effect the correct construction of sections 180 and208.
“ I cannot help thinking that the addition of these words is dueto a misapprehension of the scope of section 180.”
'JpHE facts are set out in the judgment.
Akbar, S.-Q, (with him Dias, C.C., and Vytalingam, C.C.), forthe Crown.
July 20, 1923. Jayewardene A.J.—
In this case the Solicitor-General appeals against the acquittalof the accused who was charged with an offence under section 180of the Penal Code. The charge against the accused was that hehad falsely complained to the officer in charge of the AvissawellaPolice Station that one Babbi had caused hurt to him with a knife.This was a cognizable offence. The police investigated the com-plaint under chapter XII. of the Criminal Procedure Code andfound the charge to be false, and so reported to Court. The case wasnumbered 5,363, but the accused took no steps to prosecute hiscomplaint against Babbi. The police now charge him with having,given false information to a public servant, viz., the officer in
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charge of the Avissawella Police Station, that he was cut with aknife by Babbi, an offence punishable under section 180 of theCeylon Penal Code. After the case for the prosecution was closedthe accused was acquitted, the learned Magistrate upholding thecontention for the accused that the charge against him ought tohave been under section 208, and not under section 180. In hisjudgment the learned Magistrate says—
" In my opinion, where false information has been given to thepolice against anyone to his detriment, the police shouldprosecute under section 180, Ceylon Penal Code, but wherea definite charge, which is found to be false, lias been madeagainst a person, the accused should be charged undersection 208, Ceylon Penal Code.
“ In my opinion, accused has not, in this instance, committed anoffence under section 180, Ceylon Penal Code.”
No authorities were cited, but there are two local cases whichsupport the learned Magistrate’s conclusion, Seraph v. Kandyah1and Jayasinghe v. Siyadoris Appu.2 Even if the conclusion arrivedat by the Magistrate is right, the order of acquittal is wrong. Anoffence under section 208 is non-summary, and if he thought thatthe accused ought to have been charged under that section, heshould have proceeded to take non-summary proceedings undersection 193 (2) of the Criminal Procedure Code, instead of acquittinghim. The learned Solicitor-General, however, contends that thefacts disclose an offence under section 180, although an offenceunder section 208 may also be disclosed. This is the main pointargued before me. The point, it is said, is of some practicalimportance, especially in view of the fact that by section 122 (3) ofthe Criminal Procedure Code statements made to a police officer,in the course of an investigation, are expressly made admissible in acharge under section 180 of the Penal Code. Such statements arenot available in a charge under section 208 of the Penal Code.
That the two sections, 180 and 208, do overlap each other to someextent seems clear, and the question is whether information givento a police officer of a cognizable offence does not fall under bothsections. Section 180 of the Ceylon Penal Code, which correspondsto section 182 of the Indian Penal Code, is as follows :—
“ Whoever gives to any public servant any information which heknows or believes to be false, intending thereby to cause,or knowing it to be likely that he will thereby cause,such public servant to use the lawful power of such publicservant to the injury or annoyance of any person, or todo or omit to do anything which such public servant
1923*
Javewab"
DENE A.J.
Sub•
Inspectorof Policev* Babbi
1 (1905) IS N. L. B. 10.
(1909) 13 N. L. B. 9. *
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1923.
Jaye war-dens A.J.
Sub.
inapectorof Policet>. Bobbi
ought not to do or omit, if the true state of facts respectingwhich such information is given were known to him, shallhe punished with imprisonment of either description for aterm which may extend to six months, or with fine whichmay extend to one thousand rupees, or with both.”
The Indian section has been altered by a re-arrangement of thewords of the second part of the section, but this alteration doesnot affect the point now raised. Section 208, which corresponds tosection 211 of the Indian Penal Code, is as follows :—
“ Whoever, with intent to cause injury to any person, institutesor causes to be instituted any criminal proceeding againstthat person, or falsely charges any person with havingcommitted an offence, knowing that there is no just orlawful ground for such proceeding or charge against thatperson, shall be punished with imprisonment of eitherdescription for a term which may extend to two years, orwith fine, or with both ; and if such criminal proceeding beinstituted on a false charge of an offence punishable withdeath, or imprisonment for seven years or upwards, shallbe punished with imprisonment of either description fora term which may extend to seven years, and shall also beliable to fine.”
Now, it has been held in India in Karim, Buksh v. The QueenEinpress,1 Queen Empress v. Nanjunda Ban? and Emperor v.Hardwar Pal,3 and also locally in Seraph v. Kandyah (supra), TheKing v. Girihagama,4 and Jayasinghe v. Siyadoris Appu (supra)that a complaint to a police offcer of a cognizable ofience (that is, anoffence for which a peace or police officer may, in accordance withthe provisions of the Criminal Procedure Code, arrest withouta warrant) which the police officer has power to investigate underchapter XII. of the Criminal Procedure Code, amounts to theinstitution of criminal proceedings.
It has also been held that the term “ false charge ” in section 208(211) does not include every complaint, blit only such complaints orcharges as are made to a Court or to a police officer who has powerto investigate and send up for trial, or to take any steps in regardto it, such as giving information of it to superior authorities.See Queen Empress v. Jamoona,5 Queen Empress v. Karigowda,®The Sessions Judge of Tinnevelly v. Sivan Chetti,1 and The Emperor v.Mathura Prasad.3
In the present case, the complaint made by the accused againstBabbi was a complaint of a cognizable ofience (an offence under
1 (1888) 17 Gal. 574.5(1881)6 Cal. 620.
(1896) 20 Mad. 81.8(1894)19 Bom. 51.
8 (1912) 34 AU. 522.7(1909)32 Mad. 258.
(1909) 12 N. L. R. 137, also8(1917)39 All. 715.
1 Cwrr. L. R. 32.
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section 315 of the Ceylon Penal Code) which the police couldinvestigate under chapter XII. He has, therefore, clearly committedan offence under section 208. But does the fact that he made acomplaint of a cognizable offence to a police officer prevent it beingregarded as information given to a public servant under section 180 ?There are some distinctions between the two sections which shouldbe noted. Under section 180 the prosecution must prove that theperson who gave the information knew or believed it to be false,that he had a “ positive knowledge or belief of the falsity of theinformation given," while under section 208 the prosecution needonly prove that the accused knew that there was no just or lawfulground for the criminal proceeding or false charge. In Ragkarendrav. Kashinathbhat1 Ranade J. said :—
“ If plaintiff in the present case had chosen to prosecute theoffender under section 182, it would not have been neces-sary for him to prove malice and want of probable andreasonable cause, except so far as they were implied in theact of giving information known to be false, with theknowledge or likelihood that such information would leada public servant to use his power to the injury or annoyanceof the complainant. In an inquiry under section 211,on the other hand, proof of absence of just and lawfulground for making the charge is an important element.There is good reason for this distinction."
In another case, Emperor v. Ramachandra,2 the Court said:—
“ Section 182 relates only to cases of information given to officialswith the intention of causing, or with knowledge that itis likely to cause, that official to do, or omit to do, some-thing which he ought not to do or omit to do, or to use hislawful power to the injury or annoyance of any person.This is a distinct offence from that described in section 211,Indian Penal Code, which relates to an attempt to put theCriminal Courts in motion against another person. Thisaction, which section 211, Indian Penal Code, renderspenal, is action entailing very serious consequences, andtherefore the more serious consideration is required of theindividual who takes it. It is sufficient, therefore, in suchcases for the prosecution to establish that there was nojust or lawful ground for the action taken and that theaccused knew this. But something more is required inthe case of action referred to in section 182, Indian PenalCode. To bring a case within that section, it is necessaryfor the prosecution to prove, not merely absence ofreasonable or probable cause for giving the information,but a positive knowledge or belief of the falsity of the
information given."
1 (2894) 19 Bom. 717 at 725.
1923.
Jayewaa-DBHE A.J.
Sub-Inspectorof Policev. Babbi
(2902) 32 Bom. 204.
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1923.
Jaybwab*SSNB A l J.
Sub-
Inspectorof Policeo, Babbi
A prosecution under section 180 cannot be initiated except withthe sanction of the Attorney-General, or on the complaint of thepublic servant concerned. An offence under section 180 is triablesummarily, while an offence under section 208 is an indictableoffence.
But the trend of judicial decisions in India has been to hold thatthere is no essential difference between the two sections, and thatoffences punishable under section 208 are also punishable undersection 180, provided it can be proved that the information givenis false to the knowledge or belief of the informant. The Court hasto exercise its discretion whether it should proceed under section 180or section 208. In simple cases, it is said, the prosecution should beunder section 180. See Qour’s Penal Law of India, paragraph 1569(1st edition). So far back as 1879 it was laid down in Bhokteram v,Heera Kolita,1 where it was contended that the accused ought to havebeen tried under section 211 (208) and not under 182 (180), that theoffence under section 211 includes an offence under section 182, andthat it was therefore open to a Magistrate to proceed under eithersection, although in cases of a more serious nature it may be that theproper course is to proceed under section 211. In 1890 the CalcuttaHigh Court, by a Full Bench judgment, Karim Buksh v. The QueenEmpress (supra), decided that a complaint to a police officer of acognizable offence which the police officer had power to investigateamounts to the institution of criminal proceedings within themeaning of section 211 (208) of the Indian Code, and that a personso complaining is guilty of an offence under section 211. The caseof Bhokteram v, Heera Kolita (supra) was not referred to in thejudgment, and the point there decided and now raised here was notdealt with.
But in Oiridhari Naik v. Empress,2 Ameer All and Platt JJ.thought that this question had been decided in the Calcutta FullBench case in a sense contrary to the decision in Bhokteram v,Heera Kolita (supra), and said :—
“ The questions submitted to us are whether the prosecutionshould not have been under section 211 of the Indian PenalCode, if at all, and not under section 182 ;so far as the first question is concerned, it seems to usthat the matter is concluded by the Full Bench rulingin the case of Karim Buksh v. Queen Empress (supra),where it was substantially decided that 'when a falsecharge is made to the police of a cognizable offencethe offence committed by the person making the chargefalls within the meaning of section 211 of the Indian PenalCode.**
1 (1879) 5 Cal. 185.2 (1901) 5 C. W. N. 727.
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The soundness oi this decision was soon afterwards challenged inEmperor v. Sarada Prosad Chatterjee.1 The Judges there, afterstating that it was expressly laid down in Bhokteram v. HeeraKolita (supra) that an offence may fail under both sections, and thatan offence under section 211 includes an offence under section 182,said:—
“ The only case that supports the sessions Judge’s contention isGriridhari 'Naik v. Empress (supra). There it was declaredthat a false charge made to the police of a cognizableoffence falls under section 211, and not under section 182,and the Court in so deciding treated the question asconcluded by the Full Bench in Karim Bulcsh v. The QueenEmpress (supra), but that question was not before thatFull Bench, for the Full Bench in that case only decidedthat a false charge made to the police of a cognizableoffence falls under section 211 (about the applicabilityof the latter part of which section to such cases there hadbeen some doubt), and did not decide anything aboutsection 182. The last ruling is in Ram Logan Lai v.Emperor,2 and there the Court followed Karim Bulcsh v.Queen Empress (supra) and decided nothing about section182.
“ We have now noticed all the rulings cited by the District Judgeand other cases. The law still remains as it was laid downin Bhokteram v. Heera Kolita (supra), and we entirelyaccept that view. That read with In re Russick LaiMuUick,3 lays down that a prosecution for a false chargemay be under section 182 or section 211 ; but if the falsecharge was a serious one, the graver section 211 should beapplied and the trial should be full and fair.”
But there are two decisions in Ceylon which I have referred to andwhich conflict with this view. In the earlier case, Seraph v. Kandyah(supra), the accused had been convicted under section 180. He hadmade a false charge to the police sergeant against another person ofhaving committed a cognizable offence. It was contended for himthat the charge against him should have been under section 208, andnot under section 180. Layard C.J. there said :—
“ That is an offence punishable under section 208 of the PenalCode, and it requires that the prosecution should prove,besides the falsity of the charge, that the person who madethat charge knew that there was no just or lawful groundfor such a charge against the person falsely charged by him.
“ It has been held in India in a similar case to this, wherein theaccused made a charge to the police in which he specifiedthe name of a person whom he charged with having
* (1904) 32 Gal. ISO.3 (1903) 7 C. W. N. 556.
(1880) 7 C. L. R. 382.
1923.
Jaybwab-UfiNE A. J.
Sub-Inspectorof Policev. Babbi
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1928.
Jaybwar-DBNS A. J.
aV«6*
Inspectorof Policev. Ba&bi
committed an offence, that the accused committed anoffence punishable under the Indian section similar to oursection 208, and not an offence punishable under theIndian section similar to our section 180. The appellant,therefore, in this case, has not committed the offence ofwhich he has been convicted under section 180..
In the later case, Jayasinghe v. Siyadoris Appu (supra), in whichalso the accused had been convicted under section 180 for havinggiven false information to a police constable that one Deonis hadcommitted theft, this Court followed the previous decision andacquitted the accused; Grenier J. saying that he agreed with theratio decidendi of that case. In his judgment in Seraph v. Kandy ah(supra) the learned Chief Justice speaks of an Indian case, butunfortunately he does not mention either the name of the case orthe report in which it appears. No argument of Counsel is given.If the reference is to the Calcutta Pull Bench case, that case did notdecide the point. If the reference is to the case of Giridhari Naik v.Empress (supra), that case proceeded on the assumption that theCalcutta Pull Bench case had decided a point which it had not infact decided. It has been overruled. See Emperor v. SaradaProsad Chatterjee (supra.)
No Indian case can be cited in support of the principle laid downin the two Ceylon cases, except, of course, Giridhari Naik v. Empress(supra), which, as I have pointed out, cannot be considered any longeras an authority. Then there is a third Ceylon case, The King v.Girihagama (supra), in which the accused was charged under bothsections (180 and 208) in respect of the same facts. The factsappear.in the report of the case in the Current Law Reports. Theaccused gave information to the Superintendent of Police that oneEkiriwatte and others had committed arson. The informationgiven by the accused was found to be false to his knowledge. Hewas charged, under section 208, with having instituted a criminalproceeding against Ekiriwatte and others knowing that there was nolawful ground for such proceedings. On the same facts the accusedwas also charged on the same indictment, under section 180, withhaving given to a public servant information which he knew orbelieved to be false. The accused was convicted on both counts,and sentenced to separate terms of imprisonment. Grenier A.J.,in dealing with the contention put forward on behalf of the accusedthat he should not have been convicted on both counts as the factswere the same and related to the same transaction, said :—
“ I find that the offence charged in the first count is quite distinctfrom that which forms the subject of the second count, andalthough they may have been committed in the courseof one transaction, they are, in my opinion, separate andindependent of each other.
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“ In the present case the appellant gave false information to theSuperintendent of Police, which constituted an offenceunder section ISO, and in giving such information withintent to cause injury, he instituted or caused to be insti-tuted a criminal proceeding against the persons I havementioned, which constituted quite a different offeticeunder section 208.”
After referring to some authorities, and holding that the giving ofinformation to a police officer is tantamount to the institution of acriminal proceeding, he added :—
“ I have, therefore, little or no hesitation in holding that thesecond count of the indictment is sustainable in law.Here too, as in the Madras case, the offence was a cog-nizable one; and although, perhaps, the powers of theIndian police are larger than those of the Ceylon police,the same principle or rule in regard to arrests without awarrant, in the case of cognizable offences, equallyapplies.”
This decision (May, 1909) seems to be contrary to the decisionin the two cases reported in Volume XIII. of the New Law Reports,one of which was before (1905) and the other after (November, 1909)this decision. It establishes that information of a cognizable offence,if-proved to be false to the knowledge or belief of the informantcan form the foundation of a charge under section 180, althoughthe. giving of such information amounts, to the institution of acriminal proceeding. There it adopted the principle laid down bythe Calcutta High Court in Emperor v. Sarada Prosad Chatterjee(supra).
Then it may be said that the two Bombay cases, Rayharendra v.Kashinathbhat (supra) and Emperor v. Ramachandra (supra),referred to above, support the view taken in the two local cases,Seraph v. Eandyah (supra) and Jayasinghe v. Siyadoris Appu (supra).The first case was not a criminal case, but was a civil action fordefamation arising out of a false complaint made to the police bythe defendant. The point now under discussion was not raised_orargued there, and the observations of Ranade J. cannot be regardedas authoritative. In fact, he does not decide the point involved inthis case. In the second case, the Court, no doubt, said that—
“ This (under section 182) is a distinct offence from that describedin section 211, which relates to an attempt to put theCriminal Courts in motion against another person ; ”and it went on to explain what the prosecution has to prove undersections 182 and 211 respectively. Ultimately, it held that theprosecution had failed to establish positive and conscious falsehoodon the part of the accused, who had been convicted under section182, but it nowhere stated that, if the prosecution had succeeded
1923.
JAYEWAB-DENE A.J.
Sub-
Inspectorof Policev. Babbi
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1923. in proving positive and conscious falsehood, the conviction underJayewar-—section 182 would have been wrong. In fact, that case too did not
deal with the point under discussion, and lends no support to theview taken by Layard C.J. in Seraph v. Kandyah (supra).
Such being the state of the authorities; I think that Emperor v.Sarada Prosad Chatterjee (supra), which followed Bhokteram v.Heera Kolita (supra), should be taken as laying down the correctprinciple. It affords a good working rule. To re-state it:—
DENE A.J.
Sub-
Inspectorof Policev. Babbi
“ The offence under section 208 includes an offence under section180; it is therefore open to a Magistrate to proceed undereither section, although in cases of a more serious natureit may be the proper course to proceed under section 208.”
I have discussed the question so far without reference to theproviso to section 122 (3) of the Criminal Procedure Code, whichis in these terms :—
“ Nothing in this sub-section shall be deemed. to
prevent such statement being used as evidence in a chargeunder section 180 of the Ceylon Penal Code.”
This proviso canpot affect the correct construction of section'180 or 208. I cannot, however, help thinking that the additionof these words is due to a misapprehension of the scope ofsection 180. In my opinion section 180 only applies to informationvoluntarily given to a public servant. It does, not apply to caseswhere the information is disclosed in the course of the examinationof a person by a police officer, or other public servant, especiallywhen the person examined is bound by law to “ answer truly ”all questions put to him. See section 122 (2) of the CriminalProcedure Code. As was observed in the case of Emperor v. NagaAung Po1 :—
“ The plain ordinary meaning of the expression e give information *is to volunteer information, not to make statements inanswer to questions put by the public servant, and itwould be importing into the section (180) a meaning whichcannot be presumed to have been contemplated by theLegislature to say that this section covers such state-ments.”
Now, chapter XII. of the Criminal Procedure Code, as amendedby Ordinance No. 37 of 1908, is headed “ Investigation of Offences,”and provides for the giving of “ Information to police officers andinquirers and their powers to investigate.” (Sections 120 to 132.)
Section 121 (1) requires that every information relating to thecommission of a cognizable offence, if given orally to an officer incharge of a ploice station, shall be reduced to writing and be read .over to the informant. It must also be signed by the person giving1 (1905) 2 C. L. J. (Indian) 447.
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the information. A copy of it must be entered in a book which iscalled the “ Information Book.” It is, of course, permissible forthe police officer to question the informant to obtain all necessaryparticulars. The answers to such questions would form part of theinformation given. In practice I find that this information is entereddirectly in the “ Information Book,” which the informant signs.
If, from the information so received, the officer in charge of thepolice station has reason to suspect the commission of a cognizableoffence, he is required to send a report to his immediate superior,and, if he thinks there is sufficient ground for entering on an investi-gation, to proceed in person to the spot to investigate the factsand circumstances, and to take the steps necessary for the discoveryand arrest of the offender. (Section 121 (2).) The Police Officermaking such an investigation may in writing order the attendanceof any person who appears to be acquainted with the circumstancesof the case. (Section 121 (3).) Then comes the important section,section 122, which enables the police officer holding the inquiry toexamine orally any person supposed to be acquainted with thefacts and circumstances of the case. The statements made by thepersons so examined must be reduced to writing, but no oath oraffirmation shall be administered, nor shall such person be requiredto sign his statement, but such person is bound to answer trulyall questions (with two specified exemptions) put to him by theofficer. These statements must be recorded or entered in the“ Information Book.”
It is to statements recorded under section 122 that the sub-section(3) of that section applies. This sub-section makes these statementsinadmissible in evidence, and they can be used only for the purposeof proving that a witness made a different statement at a differenttime, or of refreshing the memory of the person recording it.
There are other provisions in the sub-section which need not bereferred to here. Then there is the proviso which I have givenabove. That part of the proviso is new. It is not to be foundin the repealed sections 125 and 131 (2) of chapter XII. of theCriminal Procedure Code or in the corresponding sections of theIndian Criminal Procedure Code, Act V. of 1898, sections 162and 173 (2).
Does the addition of these words to section 122 (3) enable state-ments made in the course of the examination of a person undersection 122 (1) to be used as evidence in a charge under section 180 ?It should be clearly noted that section 122. and its sub-sections donot apply to information given under section 121. The informationgiven under that section is a complaint, and is presumed to be givenvoluntarily, although the police officer may put questions to theinformant to find out all the essential and necessary facts which goto constitute the real complaint. This information or complaint,although entered in the Information Book, is not inadmissible in
1923.
Jayewab-
DENE A.J.Sub-
Inspectorof Policev. Babbi
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1928.
J AYE WAR-DENS A.J.
Sub-
Inspectorof Policev. Babbi
evidence under section 122 (3), and can be used as evidence in aprosecution.under sections 180 or 208 of the Penal Code, or for anyother purpose for which it is relevant. It has been held in a MadrasFull Bench case, The Sessions Judge of Tinnevelly v. Sivan Chetti(supra), by Benson and Munro JJ. (Sankaran Nair J. dissenting),that where a complaint of a cognisable offence was made to a villageheadman, who was bound to pass the complaint on to a police officer,and the police officer who received it came to the village and heldan inquiry, in the course of which he examined the informant, theinformant must be regarded as having made a complaint or giveninformation under section 154 of the Indian Criminal ProcedureCode, which corresponds to section 121 (1) of our Code, and thathe was liable to be charged under section 211 of the Indian PenalCode, thus overruling Oowd v. Emperor1 and following Emperor v.Venkatiyada.a
The same considerations do not apply to the statements madeunder section 122 (1), which provides for the examination of personsother than the informant. Such statements cannot be regarded asvoluntary, but as made in answer to questions which the personexamined is bound to “ answer truly.”
If in the cousre of such an examination a charge is made againsta person, it may be that the officer holding the inquiry has thepower to make a record of the statement as information given undersection 121, and to require the person giving it to sign the informa*tion after it has been read over to him. Unless this is done, it isimpossible to say that a person making a statement under sub-sections (1) and (2) of section 122 gives information, makes a charge,or institutes a criminal proceeding. I find that the mere insertionof the words—
“ Nothing in this sub-section shall be deemed …. toprevent such statement being used as evidence in a chargeunder section 180 of the Ceylon Penal Code ”would not render a person, who discloses information or an accusationwhich is proved to be false, liable to be dealt with under section 180of the Penal Code. What I refer to here is to the statements beingused as the foundation of a charge under section 180, but they may,of course, be used for collateral purposes, such as to corroborate theevidence a witness has given in a prosecution under section 180.The proviso in question cannot be construed as in any wayamending section 180 and enlarging its scope.
I therefore set aside the order of acquittal made by the Magistrate,and direct that the accused be tried summarily under chapter XVIII.of the Criminal Procedure Code on the charge framed against himunder section 180 of the Penal Code, as the case is not a serious one.
Set aside.
8 (1905) 28 Mad. 565.
1 (1908) 31 Mad. 506.