THE KING v. WIJEYESEKERE

132-NLR-NLR-V-41-THE-KING-v.-WIJEYESEKERE.pdf


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The King v. ’Wijeyesekere.
1940Present: Keuneman and Nihill JJ.
THE KING v. WTJEYESEKERE.
7—D. C. (Crim.) Colombo, 87.
Giving false evidence in judicial proceeding—Evidence of accused taken downin shorthand—Record of statement put in—Non-compliance with Civil,Procedure Code, s. 169—No presumption under Evidence Ordinance,s. 80.
Where evidence is taken down in a civil proceeding by a shorthandwriter under the direction of the Judge it does not amount to a sufficientcompliance with the requirements of section 169 of the Civil ProcedureCode.
Such a record of the evidence given by a witness is not legally admis-sible evidence against that witness in a prosecution for intentionallygiving false evidence in a judicial proceeding.
^ N appeal from a conviction by the District Judge of Colombo.
The appellant was convicted of intentionally giving false evidence ina judicial proceeding under section 190 of the Penal Code.
The alleged false statement which formed the basis of the charge wasgiven by the appellant in evidence in a matrimonial action brought by
■ 42 L. ./. Q. B. 12(1.
The King v. Wijeyesekere.
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him against his wife for divorce on the ground of malicious desertion.The evidence in the case was recorded by a shorthand writer. At thetrial before the District Court the prosecution relied on the record of thematrimonial action in order to prove that the accused made the falsestatement attributed to him. It was contended on behalf of the accusedthat the statement was not recorded in accordance with the requirementsof section 169 of the Civil Procedure Code and was therefore inadmissibleagainst him.
H. V. Perera, K.C. (with him C. E. S. Perera, P. H. K. Goonetilleke,Dodwell GoonewardLene, and T. D. L. Aponso), for accused, appellant.—Theappellant had no intention to deceive the Court. His intention rightthrough the divorce proceedings was to say that his wife was guilty ofmaliciotis desertion. The words complained of are “ about 1937 she leftme altogether ”, There is evidence that the appellant had as his hobbythe study of law. He made the layman’s mistake of not properly under-standing the difference between “ left ” and “ deserted ”. Further, hesays that the shorthand writer had wrongly taken down “ altogether ” inplace of “ in September ”.
There is no legal proof that the accused actually stated what he isalleged to have stated. The deposition which is the foundation of thecase was not taken down in accordance with the provisions of section 169of the Civil Procedure Code. Section 80 of the Evidence Ordinancecannot help the prosecution if the deposition is proved to have beenirregularly recorded. Section 169, Civil Procedure Code, requires theevidence of a witness to be taken down in writing in the English languageby the Judge. There is no provision in our Code for a shorthand writer.Although the failure of the Judge to have taken down the evidencehimself might not vitiate a decree, yet when a person is to be charged in acriminal proceeding on a document, that document should have beenmade in compliance with the requirements of the Code. Any depositionwhich is not taken down in accordance with law is inadmissible to supportan indictment and, under section 91 of the Evidence Ordinance, no otherevidence of such deposition is admissible. The conviction cannot beupheld—Gour’s Penal Law of British India (1936 ed.), para 2059; NalluriChenchiah et al. v. King EmperorThe Empress v. Mayadeh Gossami*;Emperor v. Nabob Ali Sarkar3; Kamatchinathan Chetty v. Emperor4 ;Emperor v. Jogendra Nath Ghose‘ '■ Taj Mohammad v. Emperor °; Choye-nuddin Pramanik et al. v. Emperor''; Nath Sinha Roy v. Harishee Bagdhi8.
Nihal Goonesekera, C.C., for Crown, respondent.—The appellant madea deliberate attempt to deceive the Court in the divorce proceedings.The subsequent theory of constructive malicious desertion was simply ared herring drawn across the trial.
Section 91 of the Evidence Ordinance does not contemplate a record ofevidence. It is applicable only to a matter which is reduced to the formof an instrument by, and at the instance of a party against whom section92 would later operate.
•(1919) I. L. K. 42 Mad. 5611 (1881) I. L.R. 6 Cal. 762.
3 A. I. R. (1924) Cal. 705.
(1904) I. L. R. 28 Mad. 308.
i-JJ. N. B 17627 (5/52)
5 .4. I. R. (1914) Cal. 789.
• A. I. R. (1928) Lahore 125.7 .4.1. R. (1928) Cal. 271.
■ A. I. R.. (1929) Cal. 79.
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NIHILL J.—The King v. Wijeyesekere.
In regard to section 169, Civil Procedure Code, the words “ should betaken down by the Judge ” should be Tread so as to mean that the Judge“ may cause to be taken down That section should be read inconjunction with sections 167 end 170. To construe a section the bearingon it of other sections in the statute may be considered—Nuth v. TampUn.1
The shorthand writer has given evidence as to how he took down theevidence, and the transcript has been authenticated by the Judge. Theprovisions of section 169 are only directory and a non-compliance wouldnot make the depositions inadmissible—Bolton v. Bolton*; Elahi BakshKazi v. Emperor3; Ramesh Chandra Das v. Emperor'; Meango v.Baviah."
Shorthand is a recognized means of committing the English language h>writing—Riel v. The Queen *; Attygalle v. Shemsudeen
H. V. Perera, K.C., in reply.*—Section 169, Civil Procedure Code,controls section 170 ; the latter section contains a relaxation only withregards to the particulars mentioned therein. Evidence, therefore, whenrecorded in the narrative form, has to be taken down by the Judgepersonally and in the common script of the English language. Shorthandsymbols are only signs for phonetic sounds. A shorthand note ofevidence, although it may be a record of something said in English, does-not constitute a record in the English language.
Cur. adv. vult.
June 20, 1940. Nihill J.—
The appellant who is an Inspector of Police was convicted in theDistrict Court of Colombo for intentionally giving false evidence in ajudicial proceeding contrary to section 190 of the Penal Code. Thealleged false statement which formed the basis of the indictment wasgiven by the appellant in evidence in a matrimonial suit brought by himagainst his wife for divorce on the grounds of malicious desertion. Hispetition for divorce was -heard $x parte and in the course of his evidencehe is recorded as having said that “ about 1937 she (his wife) left mealtogether ”. His evidence was taken down at the time by a shorthandwriter who subsequently transcribed it into English.
At the trial the prosecution called evidence which clearly demonstratedthat the statement taken in its ordinary meaning was not true. Indeedit was proved that up to the time of the hearing of the petition the partieshad been living together, outwardly at least, as man and wife ; that onthe very morning of the hearing he had driven her in a car to a hairdresser in the Colombo Fort and that he had rejoined her in a restaurant *when the hearing was over.
The appellant in his defence denied that he used the words complainedof but agreed that he might have said that “ about 1937 she left me inSeptember ”» He explained, that on September 10, 1937 when he wasin Kandy he received a letter (not produced) from his wife who was then
1 L. R. (1881-3) * Q. B. D. 247.* (1919) I. L. R. 46 Cal. 895.
L. R. (1875-6) 3 Ch. D. 217.5 (1917) 19 Grim. h. J. 603.
(1918) I. L. R. 46 Cal. 835.■‘ (1884-5) 10 A. C. 675 at 679.
• (1905) 4 Tamb. 138.
NIHILL J.—The King v. Wijeyesekere.
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in Moratuwa indicating that she wished to return to her parents inEngland and that it was useless for them to continue to live togetherunder false pretences. In November his wife did return to his house butthey occupied separate rooms and thereafter there was never any trueconsortium.
The appellant it appears, as a keen Police Officer, is a student of lawand he stated that he had formed the idea in his mind that he was entitledto a divorce on account of the constructive desertion of his wife, so thatwhen he used the word “ left ” in his evidence he used it in the sense ofconstructive desertion and not with the intention to convey the false ideaof physical desertion.
His proctor who was called by the prosecution to some extent bore outthis contention but it becomes difficult to attach much importance to itwhen one looks at the plaint filed in the matrimonial suit and at thedocument Pic which contains the appellant’s evidence given at thehearing of the petition.
In the plaint not a word was said about constructive desertion and theparties were given different addresses, nor in his evidence in the matri-monial suit did the appellant give any indication that he was attachingsome special legal meaning to the ordinary meaning of common Englishwords.
I feel constrained to say that did this appeal rest on questions of factalone I would have no hesitation in dismissing it and affirming theconviction.
A point of law however of some difficulty does arise on this appealwhich merits close consideration. It is contended for the accused thathis conviction cannot stand because there was at his trial no legal proofthat the accused did in fact state what he was charged with stating.
What happened at the trial was this. The assistant recordkeeper ofthe Colombo District Court put in the record of the matrimonial suit, P 1,and the shorthand writer who had taken down the accused’s evidence’spoke to having done so. He had no independent recollection of whatthe accused had said and no other evidence was called, so that the prose1-cution in order to prove the statement relied on the record and on thepresumptions set out-in section 80 of the Evidence Ordinance.
The question that arises is, was this statement of the accused " takenin accordance with law ” so that the presumptions can apply ? Thematter is governed by section 169 of the Civil Procedure Code which runsas follows : —“ The evidence of each witness shall be taken down inwriting in the English language by the Judge, not ordinarily in the formof question and answer, but in that of a narrative ”.
On the face of it there was non-compliance with section 169. Theevidence of the accused was not taken down in the English language bythe Judge but by someone else who by the use of certain symbols wasable to record what he heard on to paper so that later he could transcribethose symbols into the English language. Later again this transcriptwas signed by the Judge. The learned District Judge before whom thispoint was also argued felt able to hold that there had been a sufficientcompliance with the section.
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NIHILL J.—The King v. Wijeyesekere.
I should be happy if I could reach the same conclusion but I confessI find great difficulty in doing so. The introduction into our Courts ofthe shorthand writer has been a considerable aid to the speedy andefficient administration of justice. Given skill and integrity on the partof the shorthand writer this method of recording evidence has obviousadvantages and I should regret if any judgment of mine should retard itsdevelopment.
Nevertheless our duty is to look at the law as it is and in the interpre-tation of a statute we cannot add to the ordinary meaning of wordssomething which is not there.
No local case was cited to us which is directly in point but we havebeen given extensive references to Indian and English cases. Thecorresponding rule in Indian Civil Procedure is Order XVIII., rules 5, 8, .and 14, but this Order is more flexible than section 169 since it allows ,evidence to be taken down in writing “ in the language of the Court byor in the presence and under the personal direction and superintendenceof the Judge ”—but if not taken down by the Judge himself, rule 8,requires the Judge to make a memorandum of the substance of whateach witness deposes.
If our section 169 was in similar terms some of the difficulties in thepresent case would disappear although there would still remain thequestion whether a taking down in shorthand was a taking down in thelanguage of the Court. Gour in paragraph 2059 of the 1936 edition of hisPenal Law of British India in discussing proof of perjury writes asfollows : —“ The deposition if reduced to writing must have been takenin accordance with law. That is to say, it must comply with the require-ments of the law under which it was taken. If, for instance, it was takenunder the Code of Civil Procedure it must comply with the provisions ofthat Code relating to the reading over and signing of it by the Judge, inthe absence of which there can be no prosecution for perjury.”
It may be also noted that under the Indian Civil Procedure Code, anumber of safeguards are provided to ensure the accuracy of the record.For instance, it must be taken under the personal direction and superin-tendence of the Judge, arid where the Judge does not himself take downthe evidence, he has to make a memorandum of the substance of whateach witness deposes. Further, the record has to be read over in thepresence of the Judge and the witness, and if necessary corrected. Underthe Ceylon Civil Procedure Code the only safeguard is the taking down bythe Judge, and where the record has to be proved in a charge of perjury,special emphasis must therefore be placed on that requirement of the law.
A study of the Indian cases fully bears out the principle stated above.Thus in Emperor v. Nabob Ali Sarkar1, two Judges held that where theprovisions of O. XVIII, R. 5 had not been fully complied with it was notpermissible to prosecute the witness on his statement informally recorded.In that case the deposition had not been read over to the witness. InNath Sinha Roy and others v. Harishee Bagdhi2, the evidence was nottaken down by the Judge himself nor did he make a memorandum underrule 8. He -dictated the evidence to a typist. It was held by Page J.
> A. I. R. (1924) Cal. p. 705.2 A. I. R. (1929) Cal. p. 79.
NIHUiL J.—The King v. Wijeyesekere.
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that this was not sufficient compliance with Order XVIII, but that it wasa curable irregularity. It should be noted that in this case no questionof a prosecution arose. The appellant there sought to set aside a decreeon the grounds that no legal evidence had been taken. The matter washeard in revision and the Court refused to treat the whole proceedingsas a nullity on the grounds that it would not promote the ends of justicebut would work hardship and injustice to the opposite parties.
I think the following passage from the judgment of Page J. is worthquoting because it may have some application to the present case : —“ The fallacy, I think, that underlies the construction which the oppositeparties urge upon the Courts is that the shorthand writer or the typistwho takes down the evidence at the dictation of the Judge is not a mereinstrument like the pen or the typing machine, that needs must re-act tothe touch of the Judge, but a human being with a will and intelligence ofhis own. and fallible as all men are.”
With that I agree, and it is for this reason that I find it difficult toagree with the learned District Judge in this case who seems to haveregarded the shorthand writer as the Judge’s “ alter ego How can hebe ? The evidence in the matter before us was taken down in narrativeform ; that was the first intellectual process to which the shorthandwriter had to address himself, he then had to write down the appro-priate symbols and later transcribe those symbols into English words.There are three stages here in which error might occur, and at no stage inthe process can the Judge have exercised any effective control.
Mr. Goonesekere, for the Crown respondent, has cited to us an Englishcase in which their Lordships of the Privy Council as early as 1885 dealtwith the question of the taking of evidence in shorthand. This is thecase of Riel v. The Queen Not much help however can be got fromthis case because there the corresponding section in Canadian Procedurerequired the Magistrate to take or cause to be taken in writing full notesof the evidence, and their Lordships held that the taking of full notesof the evidence in shorthand was a causing to be taken in writing of fullnotes of the evidence and therefore a literal compliance with the statute.
I would say at once that on the authority of that decision I would beprepared to hold in the present instance that there had been compliancewith section 169 if the Judge himself had taken down the evidence inshorthand. It is the absence of the words “ cause to be taken ” insection 169 which creates the difficulty.
These words do occur in section 170. Mr. Goonesekere attempted toargue and did argue with skill that the words “ cause to be taken ” actas an expansion of section 169 and show the intention of the draftsmanwho drafted sections 169-172. I wish I could agree but I cannot. Theclear meaning of section 170 coming after section 169 is that for a parti-cular purpose, that is, for the recording of a particular question andanswer the. Judge can stop his own taking down of evidence which willordinarily be in narrative form and direct someone else to take thequestion and answer down. That is what the two sections say and I canread nothing further into them.
1 {1884—5) 10 Appeal Cases 675 at 679.
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NIHIL,L, J.—The King v. Wijeyesekere.
Again under section 172 where on objection the Judge refuses to allow aquestion to be put, on the request of the questioner, the burden is placedon the Judge himself to take down the question, the objection, and thedecision of the Court.
In my opinion therefore there has not been a compliance with section169 and I would hold therefore that the evidence of the accused in thematrimonial suit was not taken in accordance with law. I would concedethat section 169 is directory in the sense that an irregularity in its appli-cation would not necessarily vitiate the entire proceedings. It wouldnot in' my view in the present instance have entitled the respondent tovacate the decree nisi on the grounds that no evidence had been tenderedat all. But when it comes to the application of section 80 of the EvidenceOrdinance I think the matter is different. That section lightens theburden of proof on the party producing the document but the documentitself must be free from all taint, for then and then only can the partyproducing the document obtain the benefit of the presumptions.
Even apart from section 80, we are here dealing with the proof of therecord. The law requires that the evidence should be taken down by theJudge. It is. not possible to say here that, in any real sense, therewas any taking down by the Judge. The record which should havesupported the charge- of perjury is not available and another recordtaken down by the shorthand writer is offered as proof. This cannotbe allowed.
The application of section 91 of the Evidence Ordinance was alsoargued before us. For the accused it was urged that this sectionprevented the Crown from adding parol evidence in support of the docu-ment or giving any proof except the document itself containing the recordof evidence.
' Mr. Goonesekere on the other hand has contended that the section isnot intended to cover records of evidence at all, that read with section 92it seems that the section is contemplating only documents inter partessuch as contracts, partnership, agreements and wills. I found thisargument attractive but it is against the trend of the Indian decisions andit is difficult to reconcile it with words used in the section—“ and in allcases in which any matter is required by law to be reduced to the form ofa document
However for the purposes of this appeal it is not necessary to decidethis point for if the record of what the accused is alleged to have said isput aside as I consider it must be, the prosecution did not prove byparol eviden.ee that the accused did make the statement set out in theindictment.^,
For the above reasons I have readied the con61usion, with reluctance,that there was no legal evidence before the District Judge on which hecould have convicted and accordingly the appeal Should succeed and theaccused be acquitted.
Keuneivtan J.—I agree.
Accused acquitted.