070-NLR-NLR-V-11-THE-KING-v.-ARNOLIS.pdf
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Present: Mr. Justice Wood Benton.THE KING v. ABNOLIS.
D. C. {Crim.), Colombo, 1,982.
1908.
August 8.
Penal Code. s.180—Petitionto theGovernor—Falseinformation—
Privilege—Bill of Rights—“ Public servant."
A person who gives falseinformation in a petition to the
Governor is guilty of an offence under section 180 of the Penal Code,the Governor being a public servant within the meaning of section.10 of the Penal Code.
The applicability of the Bill of Rights to Ceylon discussed.
* PPEAL from a conviction by the Acting District Judge of
XjL Colombo (H. A. Loos, Esq.), under section 180 of the PenalCode. The facts are fully stated in the judgment.
Tambiah, for the accused, appellant.
Walter Pereira, K.C., S.-G., for the Crown.
August 4, 1908. Wood Bentos J.—
In this case I have had the advantage of full and able argumentson behalf both of tbe appellant and of the Crown. If 1 thoughtthat it would serve any useful purpose to reserve my judgment, Ishould, of course, have done so; but I have made up my mind clearlyin regard to all the points which have been argued before- me, and soI propose to deal with the case while the facts and the argumentsare still fresh in my mind.
This is an appeal against a conviction under section 180 of thePenal Code; and the charge on which the appellant has beenconvicted is that on or about September 5, 1907, he gave falseinformation in a petition to His Excellency the Governor that greatpressure was put upon him by one Don Abraham Samaradiwakera,Police' Headman of Bemmulla peruwa, to induce him to give falseevidence incriminating the first accused in a case known as theVeyangoda murder case, and also that criminal force was usedtowards him by the headman in question while he was in policecustody. As the learned District Judge has imposed only a sen-tence of three months’ rigorous imprisonment, there is no right- ofappeal on the facts (section 335 (d) Criminal Procedure Code), and in.the course of the argument nothing has transpired to make me thinkit right to allow them to be reviewed in revision. Mr. Tambiahcalled my attention to the circumstance that there were two othercounts in the indictment against b;s client, and that on those counts,there has been an acquittal. It is true that the District Judtpv ba*
A
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1908.
August 4'
WoodReJitOn J.
given no reason in his judgment for his acquittal of the appellanton those two charges; but it is clear that he believed the evidencewhich was adduced in support of the first charge, and I do not thinkthat I ought to infer that there was anything in the grounds of hisdecision in regard to the second and third charges that weakenedthe view that he took of the credibility of .the evidence broughtforward to establish the first. I shall, therefore, deal with the easesolely on the issues of law that have been raised here to-day.
It was contended by Mr. Tambiah, in the first place, that, thealleged false information having been embodied in a petition to theGovernor, it was absolutely privileged under the Bill of Rights(I Will■ & Mary, Sess. II., c■ 2), and that consequently no prose-cution in respect of it could be maintained. If it were necessary todecide them, various points of grave constitutional and legal interestwould be involved in this contention. I confess that I entertainserious doubts as to whether the protection which the Bill of Rightsconfers on petitions to the Sovereign involves any absolute privilegewithin the meaning of the law. Clause 5 in the preliminary recitalof the Declaration of Rights confers no such privilege in terms. Itdeclares merely that “ it is the right of the subject to petition theKing, ” and that “ all commitments and prosecutions for suchpetitioning are illegal. ” It might fairly be argued that, while thisprovision safeguards the right of petitioning, it does not confer anabsolute immunity from either civil or criminal liability on thepetitioner in respect of any matter which he may choose to incor-porate in his petition. It stands in marked contrast to clause 9 inthe same recital, which provides that “ the freedom of speech anddebate on proceedings in Parliament ought not to be impeached orquestioned in any Court or place out of Parliament- ” It has beenheld (see Encyclo. Laws of Eng., 2nd ed., XI., p. 623) that theprivilege conferred by this latter clause is absolute;, and we allknow that it is treated as such in the recognized text books on Libeland Slander. I am not aware, however, that there are any decisionsto the effect that the right of the subject to petition the King is freefrom all the restraints both of the civil and of .the criminal Law.But, even if the privilege conferred on petitions to the Sovereign bythe Bill of Rights were absolute, there would be a further questionas to whether that privilege extends to ceded or conquered colonies,such as Ceylon (c/. on this point Forsyth’s Cases and Opinions onConstitutional Law, p. 454). As the Solicitor-General has pointedout in his argument, there is clear authority for holding that in thecase of such colonies the old law remains in force till it has beenaltered by some act in exercise of .the Royal prerogative to replace itby a new one. Mr. Tambiah was unable to cite to me any authorityshowing that any absolute privilege attached to petitions .to theDutch Government, or the Dutch Governors of Ceylon prior tothe English occupation of .the Island; and it is not suggested that
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there has been any subsequent legislation introducing the EnglishCommon or Statute Law on the subject. I would further point outthat the really enacting clause in the Bill of Bights, viz., section 6,only declares the rights and liberties which are recited in the pre-amble to be “ the true, ancient, and indubitable rights and libertiesof the people of this kingdom. ” But even assuming that thetwo difficulties to which I have referred could be overcome, Mr.Tambiah would still have to contend with a more formidable onethan either. He would have to show that the Governor of the Colonyis the representative of the Sovereign in the sense that petitionsaddressed to him enjoy the immunity, whatever it may be, conferredon petitions to the King himself by the Bill of Bights. In this con-nection I would note that it is the right of the subject in any of thecolonies to petition the Sovereign directly (see the Colonial OfficeBegulations, Article 214, to which it is permissible for me to refer inthis connection). In the present case, however, the petition wasaddressed, not to the King, nor to the Governor for transmission tothe King, but to the Governor himself officially. We have, therefore,to consider what the position of the Governor of a Colony is; andon that point the law has long been settled past the possibility ofquestion. It was suggested by Lord Mansfield, in the case ofFabrigas v. Mostyn,1 that a Colonial Governor is in the nature of aViceroy; but this dictum was expressly over-ruled by the PrivyCouncil in the case of Hills v. Bigge,2 in which Lord Brougham,delivering the judgment of the Judicial Committee, said that theGovernor does not even represent the Sovereign generally, havingonly the functions delegated to him by the terms of his Commission,and being only the officer to execute the specific powers with whichthat Commission clothes him. The same view of the law wasadopted by the Privy Council in 1879 in the case of Musgrave v.Pulido,3 in even stronger terms. It would be necessary, therefore,for Mr. Tambiah, in order to succeed on the point with which Iam dealing, to have proved by a reference to the terms of theCommission to the Governor of Ceylon that that part of the Boyalprerogative which protects the subject in petitioning the Sovereignhas in fact been delegated to him. No such proof was adducedat the trial, and in its absence, I hold without hesitation thatthe Bill of Bights, even if it is applicable to Ceylon, confers noimmunity on the appellant in the present case.
I should perhaps say a word as to the minute in the GovernmentGazette of July 17, 1908, to which Mr.'Thambiah called my attention,and in which His Excellency the Governor states that certain ralesappended to the minute “ sure not intended in any way to interferewith that right of appeal to His Majesty’s representative which isopen to all of His Majesty’s subjects. " It would clearly not be
1 Cowper 6.* (1841) 3 Moore P. C. 46S.
5 Appeal Cases 102.
1903.
August 4.
WoodRenton J.
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ISOS. ccAfapeteub for tne Governor, even if he desired to do so. to enlargeAugust 4. by any minute of this description the terms of his Commission fromWood the Crown; and no such minute, in a case like the present, couldBenton J. take the place of formal proof of the Governor's position from theCommission itself. But it is clear, I think, that the minute doesnot bear the construction which Mr. Tambiah sought to put upon it.It merely affirms, what no one denies, that it is the right of thesubject—a right impliedly recognized as far back as 1800 (c/. Proc.,Aug. 20, 1800), to petition the Governor under the conditions whichthe law allows. I have now dealt—I am afraid at some length—withthe constitutional questions which have been raised in the presentappeal. It would perhaps have sufficed, however, to have disposedof the case on the ground on which it has been decided by thelearned District Judge, viz., that section 180 of the Penal Codemakes the act of which the accused has been convicted a criminaloffence. I am clearly of opinion—and here I shall deal at once withall the questions involved in the construction of that section—thatthis decision is sound. Section 19 of the Penal Code includes in thedefinition of “ public servant ” every person holding any office inCeylon by virtue of any Commission granted by the Crown. It isclear from the Colonial Office Regulations, to which I have a right torefer, that the Governor comes under this category.
It was, therefore, to a “ public servant ” within the meaning ofsection 180 that the accused’s petition was addressed. It hasbeen held by the learned Judge that the appellant knew or believedthat the alleged facts which he embodied in that petition werefalse, and that he “ intended thereby to cause, ” or knew that hewould likely cause, the Governor to use his lawful powers to theinjury or annoyance of the police vidane, who is also a “ publicservant ” within the meaning of the same section. It was urged byMr. Tambiah that I ought to restrict the interpretation of the word" information ” in section 180 to the statement of something in thenature of a criminal complaint, and that it ought not to be held to•extend to an enumeration of alleged grievances by the person con-veying the information. I am unable to adopt this view. I thinkthat both by its terms and by the spirit of the enactment section 180should be held to include the statement, falsely and maliciously,of any circumstances which may lead, and which are intended orknown to be likely to lead, a public servant to take lawful action olnny kind to the injury or annoyance of any of his subordinates.It was further contended by Mr. Tambiah that there is no evidencein the present case which showed that the Governor had “ lawfulpower ” to take action of the kind that I have referred to. In thisinstance, again, it would appear from the Colonial Office Regulationsthat the Governor has a power to direct the suspession of a publicservant in the position of a police headman, who is here alleged toRave been traduced. It is clear that a communication such as the
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appellant made in his petition would tend to induce the Governor,if on inquiry he found that the allegations in the petition evenrequired serious investigation, to put that power of suspension intooperation. There can be no doubt that aetion which exposes apublic servant to the danger of the exercise of the power of suspen-sion comes within section 180. But I should be prepared myself togo further. It is within the power of the Governor (it was a powerwhich, in fact, His Excellency exercised in the present case) to refera petition of the character now before me to the Colonial Secretaryfor inquiry and report. In my opinion, it would be quite sufficientfor the purpose of establishing a case on this p'irt of section .180, ifit were shown—and there is evidence to that effect—that it iswithin “ the lawful power ” of the Governor to institute inquiries,which must injure the public servant if the charge is established, andmust annoy him even if it fails. The case cited by Mr. Tambiahof P- C., Ratnapura, No- 9.993,1 in no way conflicts with this inter-pretation of the law. It was there held by Withers J. that aninquirer into deaths, to whom a complaint of alleged theft had beenmade, and who had no authority to summon the party accusedbefore him or to do anything except pass on the information to someone else possessing that authority, had not “ lawful power ” withinthe meaning of section 180 of the Penal Code. The Governor isin quite a different position. He has himself power to instituteinquiries and to take action, which may directly cause the prejudicecontemplated by section 180. P. 0. Hatton, No. 13,404,2 decidedby Browne A.J., appears to have equally little bearing on thepoint now in issue. In that case the Inspector of Police, to whomthe false information was given, was held by the' Judge to have no“ lawful power ” to act on it within the meaning of section 180, asthe charges alleged in the information were not “ cognizable offences.Whether that case was rightly decided or not is a question that doesnot now arise for decision. It is not in point.
I have now dealt, I think, with all the questions arising on theconstruction of section 180. I proceed to add a few words in regardto Mr. Tambiah’s argument that he was entitled, under section 434of the Criminal Procedure Code, to obtain a copy of the notes of thelearned Judge who tried the Vevangoda murder case in the Court ofAssize. I confess that I think there is great force in Mr. Tambiah'sargument, on that point. Section 303 of the Criminal ProcedureCode makes it the duty of the Judge to take notes of the evidence.Under section 226 (1) he is further required to “ record ” anyobjection that may be taken to a status of a juror. I think that theJudge’s notes of the evidence in an Assize case are a record withinthe meaning of section 434 of the Code. They are, in fact, the onlyrecord that exists of the evidence given at the trial; and it wouldobviously give rise to great hardship in many cases if the parties had1 S. C. Min., Sept. 11, 1894.* 5. C. Min., Aug. 15, 1893.
1908.
August. 4
WoodRknton J.
1908.
August 4.
WoodRenton J.
do right of access to them. At the same time I do not think thatMr. Tambiah is entitled to the benefit of this point in the presentcase. He applied for a summons on the Registrar of the SupremeCourt to produce the Judge’s notes, but he allowed the case to goon to its conclusion, although no return to the summons had beenreceived before the close of the trial; and I do not think that hecan now successfully raise what I should be disposed to regard asa very arguable point.
As to the sentence of three months’ rigorous imprisonment, I seeno reason whatever for interfering with the decision of the learnedDistrict Judge. If it be the case, as appears from the evidence onthe record, that the Governor receives some 4,500 to 5,000 petitionsa year, it is of great moment that the numerous array of suitorswhich these figures indicate should be taught that while they havefree access to the Governor by way of petition, they have no rightto use this privilege for the purpose of falsely and maliciouslydestroying or imperilling the reputation of others and I can onlysay that I am very glad that there is nothing in the law whichobliges me to hold that petitions of this description confer on theirauthors any absolute exemption from criminal liability. Withthese observations I dismiss the appeal.
Appeal dismissed.