019-NLR-NLR-V-02-THE-QUEEN-v.-RAMALINGAM.pdf
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1886.
June 19 and
23.
THE QUEEN v. RAMALINGAM.jD. C., Colombo (Criminal), 1,215.
Offering gratification to screen an offender—•Ceylon Penal Code, s. 211—
Necessary averment in charge under s. 211—Judgment in rem.
R was charged under section 211 of the Ceylon Penal Code withoffering a gratification to.F in consideration of his screening C. from legal punishment for the offence of criminal breach of trustunder section 389 of the Ceylon Penal Code. C had been tried forthat offence and acquitted.
Held by Bonser, C.J., and Withers, J., that before R could befound guilty it must be proved that C was guilty of the offence oforiminal breach of trust, and that C’s acquittal was not conclusiveon that point, a judgment of acquittal or of conviction not beinga judgment in rem which could not be controverted.
Held, further, by Bonser, C.J., that a charge under section 211should contain an averment of the offence committed by theperson sought to be screened.
Per Lawrie, J.—The question whether the offer of a gratificationby R to F was punishable by law depends not on whether C wasor was not guilty of criminal breach of trust; it is sufficient to show' that F had reason to believe facts which were relevant to the issueof C’s guilt. In either case, C’s acquittal was not material to theissue in the prosecution against R.
HTHE facts of the case sufficiently appear in the judgment ofBonser, C.J.°
Cooke, C.C., for appellant.
Domhorst, Pereira, and de Saram, for accused, respondent.
The following authorities were cited in the course of theargument:—I. L. R., 14 Mad. 400 ; 2 Moody, G. C., 124; I. L.R., 12 All., 432; 20 W. R., Cr. Rul., 66; Russ, and R., 84; I. L.
R., 11 Cal., 619 ; I. L. R., 3 All. 279 ; 8 W. R., Cr. Rul., 68, VII.,
S.C. C., 132.
23rd June, 1886. Bonser, C.J.—
The question in this case is as to the construction of section 211of the Penal Code, which, so far as is material, is as follows:—“ Whoever gives, or causes, or offers, or agrees to give or cause, any“ gratification to any person, or to restore Or cause the restoration“ of any property to any person in consideration of that person’s“ concealing an offence, or of his screening any person from legal“ punishment for any offence, or of his not proceeding against any“ person for the purpose of bringing him to legal punishment, shall,“ if the offence is punishable with imprisonment not extending to
Cur. adv. wit.
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“ ten years, be punished ” as therein mentioned. It appears thatone Chelliah, an assistant shroff in a bank in Colombo, was chargedwith three separate acts of criminal breach of trust in respectof three several sums of money, viz.: (1) a sum of Rs. 3,000deposited by one Fernando; (2) a sum of Rs. 2,510*70 depositedby another person; and (3) a sum of Rs. 1,700 deposited by a thirdperson. As these offences were alleged to have taken place withina period of twelve months, the charges were under our law triedtogether at one trial in the District Court of Colombo by the ActingDistrict Judge sitting alone without assessors. -The result ofthat trial was that Chelliah was acquitted of the first-two chargesand convicted on the third. It is alleged that whilst these chargeswere pending against Chelliah, the present respondent (Rama-lingam) offered Fernando to pay him his Rs. 3,000 if he wouldrefuse to give the bank manager any information respecting thedeposit; that Fernando refused, and was subsequently offered byRamalingam Rs. 5,000, which also he declined. It appears thatFernando not only communicated with the manager, but gaveevidence in the preliminary inquiry and at the trial. After thetrial Ramalingam was charged and tried for this alleged offence inthe District Court of Colombo. The indictment charged Rama-lingam : “ (1) That he on or about the month of June, 1895, at“ Colombo, within the jurisdiction»of this Court, offered to give a“ gratification of Rs. 5,000 to one Lucas Fernando in consideration“ of his refraining from giving evidence against Marimuttu Chelliah,“ and thereby screening the said Marimuttu Chelliah from legal“ punishment for the offence of criminal breach of trust of property“ under section 389 of the Ceylon Penal Code, of which offence the“ said Marimuttu Chelliah was on the 2nd December, 1895, con-“ victed by the District Judge of Colombo, and thereby committed“ an offence punishable under section 211 of the Ceylon Penal“ Code.” After this trial had proceeded a short way, and as soon asit appeared by the evidence that Chelliah had been acquitted ofthe charge in respect Of Fernando’s Rs. 3,000, the learned DistrictJudge stopped the case and acquitted the respondent on theauthority of an Indian case, Queen Empress v. Saminathan (I.L.R.14 Madras, 400). He thus states the effect of that case :—“ The“ charge there was that a gratification was agreed by accused to be“ given to S in consideration of S not giving evidence against K“ on a charge of house-breaking and theft. S did give his evidence,“ but K was nevertheless acquitted, and it was held that accused“ was also entitled to be acquitted on the ground that the section“ presupposed as the condition for accused’s offence that the house-“ breaking and theft had been committed, or that he was guiltyVol. II..12(55)29
1886.
June 19 and23.
Bonsek,C.J.
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1886.
June 19 and23.
Bonser, C. J.
“ thereof. K’s acquittal having negatived each of these the tender“ of the gratification was not punishable under this section.” Ifthat is a correct statement of the case I am unable to agree withit, for I do not understand how K’s acquittal could possibly beproof, or even evidence, that the offence had not been committed.It might have been committed by some one else. Nor in myopinion does it prove that K did not commit the offence. All itdetermined'was that the evidence adduced on K’s trial wasinsufficient in the opinion of the jury to warrant his convic-tion. A judgment either of acquittal or of conviction is not ajudgment in rem which cannot be controverted. To make theacquittal of the person sought to be screened a bar to a prosecu-tion under section 211 would produce this absurd result, thatthe innocence or guilt of a person charged under that sectionwould depend on whether he had been successful in defeatingjustice or not, for the acquittal might be the direct result of thegratification. If the Madras High Court judgment means morethan this, viz., that in a case under section 211 it is necessaryto prove that an offence has been committed by the person whois sought to be screened, I venture respectfully to disagree withit. But Mr. Cooke, who argued for the appellant, the Attorney-General, contended that it was not, necessary that any offenceshould have been actually committed, and that an offence undersection 211 was complete when a gratification was offered by oneperson in order to screen another person whom he believed,though erroneously, to have committed an offence. But thisconstruction, in my opinion, is not warranted by the words of thesection which speaks of “ an offence,” and of “ a person being” screened from legal punishment for an offence,” and again of“ the offence.” Section 38 of the Penal Code defines an “ offence”as a thing “ punishable in Ceylon under this Code or any law otherthan this Code.” Neither the Penal Code nor any other law, sofar as I know, makes a thing punishable which only exists in aperson’s imagination, and has no actual existence in fact. Again,–if'section 211 is to be construed in the way contended by Mr. Cooke,we should have this strange result, that if A falsely accuses B.of anoffence of which he knows him to be innocent, and B from cowardicepays him hush money, B will be guilty of an offence andliable to punishment. In my opinion this section must betaken in its plain and literal meaning. If the Legislature hadintended to include in the term “ offence ” that which was notan offence as having no real existence, nothing could have beeneasier than to have expressed this intention by apt words.For these reasons I agree with the learned District Judge" that
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before Rn.mfl.1ingn.ni can be found guilty under section 211 it mustbe proved that Chelliah was guilty of an offence ; but I disagree withhim when he holds that Chelliah’s acquittal is conclusive on this point.It is clear that if flhelliah had been convicted his conviction wouldnot have been conclusive of the fact of his guilt, and that it wouldhave been open to Ramalingam to show that Chelliah had beenimproperly convicted, and was in fact innocent. And I doubtwhether the record of the conviction would be admissible as evidenceon the issae as to guilt of Chelliah. Similarly, I doubt whetherthe record of the judgment of acquittal would be admissible inthe present case on the same issue. For these reasons I am ofopinion that the learned District Judge was premature in stoppingthe case and entering a judgment of acquittal, and that judg-ment must be set aside and the case tried out.
I may add that in my opinion the charge should contain anaverment of the offence committed by the person sought to bescreened, following the precedent of an English indictment forcompounding a felony.
Again, whilst I agree with the observations of the learned DistrictJudge as to the necessity of keeping distinct the evidence on thethree charges, it is by no means clear that Fernando’s evidencemight not have been material on ‘the other charges. In cases ofembezzlement evidence of other acts of embezzlement may be givento anticipate the defence that the cases being tried were merelyaccidental errors (see Reg. v. Richardson, 8 Cox 488 ; and, MaUn v.
G. of N. j8. Wales, [1894] A. C. 57). It may well be that Rama-lingam believed, and rightly believed, that the suppression ofFernando’s evidence might materially assist to screen the prisoneron the other charges.
Lawbie, J.—
I agree in the result at which the Chief Justice has arrived, buton rather different grounds. In my opinion it lay on the prosecutionto prove that Lucas Fernando knew facts from which he had reasonto believe that Chelliah had committed criminal breach of trust,an offence which could not lawfully be compounded, punishableunder section 389. If Lucas Fernando knew these facts, hewas legally bound to give information; and if he omittedto do so, he was liable to punishment under -section 199 ofthe Penal Code; or if he in any way screened the offender,he was liable to punishment under section 209. Further,it lay on the prosecution to prove that Ramalingam instigated
1886.
June 19 andS3.
Bonseb.C.J.
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1880.
June 19 and93.
Law rib, J..
Lucas Fernando to oommit the offence of intentionally omittingto give information, or of screening the offender, under sections199 and 209. The instigation of abetment by Ramalingamtook the form of the offer of a gratification, but the essence of hisoffence was abetting Fernando to an unlawful omission. LucasFernando did not commit the offence to which (it is said)Ramalingam instigated him. But if Ramalingam did illegallyinstigate Fernando to commit an ofEence under sections 199 and209, he is punishable either under section 109 or 211,* either forsimple abetment or for abetment by offer of a gratification (it doesnot matter which), because the punishment of both is the same—one-fourth of the punishment which the person abetted wouldhave got if he had committed the offence desired by the abettor.It is. my opinion that the ofEence under section 211 is complete atthe moment when offer of the gratification is made to induce a man,who has, relevant information regarding the commission of anoffence which cannot be compounded by himself, to commit theoffence of omitting to give that information, or to induce a manwho has reason to believe that an offence has been committed toscreen the offender. The question whether the offer of a gratifi-cation by Ramalingam to Fernando was punishable by law dependsnot on whether Chelliah was or was not guilty of criminal breachof trust: it is sufficient to show that Fernando had reason to believefacts which were relevant to the issue of Chelliah’s guilt. Thequestion is, whether Ramalingam was liable to punishment if he infact instigated Fernando to suppress these facts and to screen theoffender, and thus attempted to prevent the matter of Chelliah’sguilt or innocence being fully and fairly tried. But whether thequestion of the guilt or innocence of Chelliah be material or not,it is at least certain that his acquittal at the trial is not material.If he had been convicted it could not have prejudiced Ramalingamin his defence here. A conviction could neither have made Rama-lingam’s guilt more obvious nor more heinous. Chelliah’s acquittalseems to me irrelevant in this trial for illegally abetting LucasFernando to commit an offence under sections 199 and 209. Itmay be suggested that at this trial for an offence under section.211 Ramalingam’s defence may be either a denial that he offereda gratification or an attempt to justify that offer by proof thatLucas Fernando had no reason to believe that criminal breach oftrust had been committed by Chelliah, and hence that the offerof a gratification to Fernando was in fact to induce him to abstainfrom giving false evidence, and therefore it was a legal offer.What the effect of such a line of defence would be, I need not
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anticipate. I agree that the learned District Judge was wrongto stop <the trial and to acquit Ramalingam merely on proof thatChelliah was acquitted—a fact which seems to me, if not altogetherirrelevant, at least quite inconclusive.
WlTHEBS, J.—
The respondent in this appeal was indicted in the District Court
of Colombo under section 211 of the Penal Code for offering a gratifi.
cation to one Lucas Fernando, in consideration of that person
screening one Chelliah from legal punishment for the offence of
criminal breach of trust of certain moneys which Lucas Fernando
had entrusted to him. At a certain stage in the cause proof was
put in of the fact that Chelliah had been prosecuted for that very
offence, and had been acquitted by a judgment of a Court of
competent jurisdiction, and it was urged in defence of the respondent
that he could not be convicted of bribing a person in consideration
of that person screening from legal punishment for an offence one
who had been adjudged not guilty in respect of that very offence.
The learned District Judge, yielding to that argument, stayed the
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proceedings and discharged the respondent. In my opinion thelearned District Judge was premature in so disposing of the casebefore him. No authority was cited to us that a judgment ofacquittal has the effect of a judgment in rem conclusive, that is,against all the world. In the case before us the prosecution is, Itake it, bound to prove that offence of criminal breach of trust ofLucas Fernando’s deposit was committed, that Chelliah had renderedhimself liable to legal punishment for that offence, and that inconsideration of Lucas Fernando screening that offender from legalpunishment the respondent offered him a gratification. Why shouldthe prosecution be debarred from proving that Chelliah was theactual offender ? Supposing, for argument sake, that evidencehad been suppressed by some act or omission of Lucas Fernandowhich would have brought home the offence to Chelliah, andrendered him liable to legal punishment, and that in consequenceChelliah secured an acquittal and immunity from punishment.The acquittal cannot be an answer, unless a judgment ofacquittal has the force and effect of a judgment in rem. But thejudgment in itself has so little effect that it does not stand in theway of a second prosecution for the same offence* It becomeseffectual only when pleaded, and then the plea is only admittedon the generous maxim of the common law that no oneshould be brought into jeopardy more than once for the same
1686.
June 19 and23.
Lawbib, J.
1888.
June 19 and
23.
Wnniata, J.
offence. Conversely, a conviction is not a judgment in rem. Itappears to me that if Chelliah had been convicted of the criminalbreach of trust of Lucas Fernando’s deposit, it would have beenopen to the respondent in the proceedings to prove that Chelliahwas not the real offender. An accessory, by the English law, maycontrovert the guilt of his principal (Foster, 265). For thesereasons, I think the order appeal from should be set aside, and thecase remitted to the District Court for trial.