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1902.October 7and 14.
False evidence—Summary punishment of—Criminal Procedure Code, s. 440.—
The procedure prescribed by section 140 of the Criminal ProcedureCode for the summary punishment of a person giving false evidence isnot obligatory on the Magistrate. If he Oinks fit, he may transmit therecord to the Attorney-General or send the offender before a PoliceCourt to be dealt with in the ordinary way.
It was not intended by the Legislature to dispose of cases of givingfalse evidence summarily, where such evidence involved the concoctionof a false charge and the subornation of false testimony.*
HIS was an appeal from a conviction under section 440 of the.
Criminal Procedure Code for giving false evidence. The
facts of the case are fully set out in judgment of the SupremeCourt.
Bawa, for appellants.
H. J. C. Pereira, for respondent.
Cur. adv. vult. * 1
TEYVANAI v. NATHANIEL.P. 0., Hatton, 37,194.
* The decisions pronounced by the Supreme Court in this case and in Andris o.Jutcanis (2 N. L. R. 77), D.C., Batnapura, 540 (Koch’s Reports 32), Queen o.Fernando (4 N. L. R. 218), and Achchi Kannu v. Ago Appu (5 N. L. R. 87),appear to establish the following principles:
1.That the punishment of false evidence summarily as a contempt of courtis justifiable either where a statement is on the face of the witness’ depositiona false one, or where it is shown to be false by a contradictory statement of themm witness in the course of a previous judicial proceeding relating to the samematter.
That the summary method should not be adopted where, by reason of aconflict of evidence between witnesses, one or more of them is believed by theMagistrate or Judge to have given false evidence; or where the evidence foundto be false was given in support of a concocted charge, or as the result of a con-spiracy to suborn witnesses.
That in the latter class of cases it is the duty of the Magistrate or Judgeto forward the record to the Attorney-General, or proceed in manner provided insection 380 of the Criminal Procedure Code.—Ed.
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October 1and 14.
14th October, 1902. Wendt, J.—
In this case two women, the appellants, charged one Nathanielwith using criminal force to them with intent to outrage theirmodesty, an offence punishable with two years’ rigorous imprison-ment and fine and whipping under section 345 of the Penal Code.Their story was that the accused, who was the conductor onOsborne estate, and in charge of the labour force to which thesewomen belonged, ordered them to go to a secluded part of theestate for work, and there committed the offence, first on one ofthe appellants and then on the other. The acts deposed to by theappellants, if true, established the charge against the conductor.They called one witness Narayanen, who to a certain extentcorroborated them. Before his evidence was taken the Magistrate,on the depositions of the women, issued a warrant against theaccused,, who, when he appeared, made a statement to the effectthat the charge was absolutely false. He said it was got up. against him because of his strictness with the labour force, andowing to his having earlier in the day in question had occasion tofind fault with some coolies for shirking work, and this had ledto an assault upon him by a number of coolies, among whomwere Narayanen and the husband of one of the appellants. Thecase not being summarily triable, the accused did not giveevidence, but he called two witnesses, who affirmed to havingseen the attack on accused, the appellants being also presentat it.
The Magistrate, without submitting the case to the Attorney-General, discharged the accused, considering the charge grosslyuntrue. He believed, that the appellants had committed perjury inthe course of the proceedings and proceeded against them undersection 440 of the Criminal Procedure Code. The passage in firstappellant’s deposition upon which he elected to assign perjurywas this: “ Then he pulled me by both my arms, after taking offmy cumbli and putting it on the ground. He then struck me withthe umbrella till the handle broke.” The passage selected in thecase of the second appellant was this: “Then the accused came run-ning and pulled my cumbli and asked me to lie down. ” TheMagistrate convicted both appellants and fined them Rs. 50 eachwith two months’ rigorous imprisonment in default of payment—being the maximum punishment he had it in his power to impose.The question is whether these proceedings can be supported.
It is clear from the view taken by the Magistrate that he believedthe charge to be entirely without foundation. To quote his ownwords: “ In the present instance the proceedings do not satisfy me
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that the evidence is even faintly tinged with truth.” The deposit 1802.(dons of Idle two appellants were consistent and corroborated each
other as to the incidents necessary to establish their charge, although
discrepancies appeared in other details. If these depositions were ^BNDT’J’false, they were wilfully false, and were dearly the result of a con-spiracy between the two appellants; with the complicity possiblyof their witness Narayanen. They conspired together to prefer amost serious and altogether unfounded charge against the accused—acharge which, if believed, would have led to his committal beforea higher Court, and in the event of conviction there, would haveruined his prospects for life. I do not think that where so seriousa crime is primd facie established against a witness, he should bedealt with under the very limited powers which section 440 conferson inferior Courts. The procedure prescribed is not obligatory,and the section itself (sub-section 4) reminds the Magistrate thathe is entitled, if he thinks fit, to transmit the record to theAttorney-General or to send the offender before a Police Court tobe dealt with in the ordinary way. I think this view of section440 is that established in the cases decided by this Court, the mostimportant of which was cited to the Magistrate. Andris v. Juwanis(3 N. L. R. 74) was brought before the Pull Court in order that anauthoritative ruling might be given on what was then a new enact-ment, viz., section 12 of the Oaths Ordinance of 1895, which iscopied into section 440 of the Criminal Procedure Code. The Courtlaid it down that “ this summary procedure should only be usedin cases where it is clear on the face of the proceedings thatwitnesses have been guilty of wilfully giving false evidence, notin a case where there is a conflict of testimony. In the latterclass of cases Magistrates would do well to exercise one of thealternative courses open to them under section 12 of the Ordinance.”
Lawrie, J., said: “ The Police Magistrate was of opinion that theseappellants gave false evidence to secure the conviction for robberyof an innocent man. This- serious perjury cannot adequately bepunished by a Police Magistrate by a small fine, nor indeed canso serious an offence be summarily dealt with without a trial. ”
In £>. C. (Criminal), Batnapura, 540, (Koch 32), which was asimilar case to the present, Withers, J., commented on andexplained Andiris v. Juwanis. See also the remarks of WithersJ., in Silva v. Jonna (4 N. L. R. 26). The Magistrate does indeed,in the case of one of the appellants, show that she contradictedherself, but he finds that this inconsistency was due to theuntruthfulness of the witness’s whole narrative.
I think the offence, if any committed by these appellants wasof so grave a character that .it was punishable with a much more
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1902.October 7and 14.
severe sentence than a fine of Us. 50, and that the Court oughttherefore not to have dealt summarily with them, but followedone of the alternative cousea open under section 440.
I therefore set aside the conviction, and, as was done in the caseof Andris v. Juwanis, direct the Magistrate to forward the recordto the Attorney-General.
I am alive to the consideration mentioned by Bonser, C.J., inAndris v. Juwanis, that a light punishment, following withcertainty close upon the offence, is far more efficacious than amere chance of a much heavier punishment which may never beinflicted, but I think that the effect of Police Courts dealingsummarily with cases of criminal conspiracy like the present willnot be wholesome. It will induce the belief that the punishmentfor concocting a false charge and suborning false testimony tosupport it will be at the utmost a fine of Rs. 50, for a person finedunder section 440 could not afterwards be prosecuted for thesame offence.
TEYVANAI v. NATHANIEL