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
June 19 andS3.
( 52 )
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
( 63 )
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.
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
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
June 19 and23.
Lawbib, J.
June 19 and
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.