v.OFFICER-IN-CHARGE, PUGODA POLICE STATION
P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPEAL NO. 1/94
C. GAMPAHA NO. 4/91M.C. PUGODA NO. 8677/PMARCH 30,1994.
Penal Code – Offences of giving false evidence and intentionally insulting theMagistrate – Sections 190 and 223 of the Penal Code – Deprivation of a fair trial -Validity of conviction.
Whilst the appellant who was a witness in a case was under cross examination,he was charged with offences under Sections 190 and 223 of the Penal Code, onthe order of the Magistrate who proceeded to try him forthwith. The appellant wasundefended; and he was convicted ‘on his own plea1* and sentenced to threemonths rigorous imprisonment and a fine of Rs. 1,500/-.
In view of the fact that the charge sheet contained no particulars of the allegedoffence and the appellant was not given an opportunity of defending himself, hehad been deprived of a fair trial; hence proceedings taken against him wereinvalid.
Cases referred to:
In re De Silva 50 NLR 517.
Jayawardena v. The Queen 73 NLR 307.
Subramaniam v. The Queen 57 NLR 409 (PC).
Daniel Appuhamy v. The Queen 64 NLR 481 (PC).
APPEAL from the judgment of the High Court, Gampaha.
H. M. Jayatissa Herath with Mrs. W. J. R. Herath, and Sarath Weerakoon forappellant.
Respondent absent and unrepresented.
Cur. adv. vull
May 30, 1994,
This is an appeal against the judgment of the High Courtdismissing the appellant’s appeal against his conviction andsentence by the Magistrate. Pugoda for certain offences on twocounts, namely (1) giving false evidence in Primary Court caseNo.400/L (which was being inquired into by the said Magistrate),punishable under Section 190 of the Penal Code, and (2) intentionallyinsulting the Magistrate in the course of the same proceedingspunishable under section 223 of the Penal Code. Neither the reportsto Court nor the charge sheet gives any particulars of the acts said tohave constituted the alleged offences.
The appellant states that on 27.08.91 he testified as therespondent in case No. 400/L and was under cross examination. Atthat stage and around 5.30 p.m., the Magistrate ordered the CourtOfficer (Police Constable 8131) to charge the appellant with offencesunder the aforesaid Sections of the Penal Code, which wasimmediately done by the said constable who filed a report to Courtunder Section 136 of the Code of Criminal Procedure Act and acharge sheet specifying the alleged offences. The record shows thatthe Magistrate has proceeded to try the appellant forthwithwhereupon, according to the appellant he pleaded ‘not guilty’. But
the Magistrate found him guilty and imposed a sentence of threemonths rigorous imprisonment and a fine of Rs.1500/- in default threemonths rigorous imprisonment.
The plea of the appellant has been recorded by means of therubber stamp which is not decipherable as to the plea. However,according to the certified copy of the proceedings produced by theappellant, the Magistrate had proceeded to convict the appellant ‘onhis own plea'. So it seems that the Magistrate had acted on the basisthat the appellant pleaded guilty.
Before the High Court it was urged on behalf of the appellant thatthe conviction is invalid; firstly on the basis that the appellant hadpleaded 'not guilty' and hence he could not have been convictedwithout a trial; and secondly the charge against the appellantcontains no particulars as to the acts constituting the allegedoffences. It was also submitted that the proceedings whichculminated in the conviction are unlawful in that the appellant was notgiven a fair opportunity to meet the allegations against him; nor hasthe Magistrate come to any finding as to the evidence on the basis ofwhich the appellant could be convicted of the alleged offences.
Learned High Court Judge having examined clear samples of twotypes of rubber stamps used in the Pugoda Magistrate's Court foundthat there is one rubber stamp for recording the plea of 'guilty" andanother for recording plea of ‘not guilty'. He then compared thedecipherable part of the appellant's plea with the rubber stamp usedfor recording a plea of 'guilty' and held that in the instant case therubber stamp used is the one for recording a plea of ‘guilty’; hencethe appellant had in fact pleaded guilty to the charges against him.
On the submission that the charges are defective for want ofparticulars, learned High Court Judge said that these submissionsneed not to be considered and dismissed the appellant’s contentionwith the observation “… if he had pleaded not guilty, as his Counselsays he did. he must have been reasonably informed of the nature ofthe charges".
In the circumstances, the Court did not consider any of thedecisions cited by learned Counsel for the appellant.
There is no basis for the above inference made by the High Court.In the absence of a record of what transpired in Court, it could not beinferred from the appellant’s plea that he had been informed of theparticulars of the charges, where the charge sheet itself contains noparticulars. The decision which the High Court failed to consider dueto the wrong approach adopted by it are as follows:
In the case of In re De Silva"1, it was held that a District Judge or aMagistrate should not punish a witness summarily for giving falseevidence under Section 11(1) of the Oaths Ordinance without givingthe witness an opportunity of reconciling his contradictorystatements; nor should action be taken under that section until theconclusion of the case. It was also held that it is not open to the Courtto convict a witness under Section 11(1) summarily merely becausehe has made a contradictory statement. The Court should make upits mind which statements it holds to be false and which it does nothold to be false. This decision was followed in Jayawardena v. TheQueen®
In Subramaniam v. The Queen131, it was held that the summarypower conferred by Section 440 (1) of the Criminal Procedure Codeis one which should only be used when it is clear beyond doubt thata witness in the course of his evidence in the case being tried hascommitted perjury.
In Daniel Appuhamy v. The Queen1*1, it was held that it is notnecessary in proceeding under Section 440(1) of the CriminalProcedure Code (to sentence a witness summarily “as for a contemptof Court") that the accusation of giving false evidence should bestated with the particularity required in a count of an indictment. If theCourt is of the opinion that the whole of the witnesses’ evidence isfalse, it may be sufficient just to say that. But when it is not suggestedthat the whole of a witnesses' evidence is false, it is essential that thewitness be left in no doubt as to which parts are alleged to be false.The Court should before sentencing a witness, give the witness anopportunity of explanation and possibly of correctingmisapprehension as to what had been in fact said or meant. In thatcase the Jury brought a rider that the witness had given falseevidence. On being asked by the Commissioner whether the witness
SC Tillekeralne v. Officer in Charge, Pugoda Police Station (Kulatunga, J) 11had any cause to show, witness begged his Lordship's pardonwhereupon, he was sentenced to three months rigorousimprisonment. That sentence was quashed upon appeal to the PrivyCouncil.
In the instant case the proceedings taken against the appellant arenot proceedings for summarily punishing him for contempt. A reportto Court has been made alleging certain offences; and the Court hasproceeded to try the appellant then and there as though it was acase fit for summarily punishing the appellants for contempt. Theappellant was undefended and was promptly convicted andsentenced. The above decisions applicable to the cases whereproceedings for summarily punishing a witness have been taken,apply with even greater force to the instant case and the submissionthat the proceedings taken against the appellant are invalid mustsucceed in view of the following facts.
the charge sheet contains no particulars of the allegedoffence;
the record does not show that the appellant was given anyfurther information or an opportunity of defending himself;
even a perusal of the appellant's evidence in case No.400/Ldoes not enable us to gather the facts material to the charges.
For the above reasons, we are of the view that the impugnedproceedings are invalid. The appellant who was charged with seriousoffences by the report made in terms of Section 136 of the Code ofCriminal Procedure Act has been deprived of a fair trial, in terms ofthe relevant provisions of the Act. We accordingly allow the appeal,set aside the judgment of the High Court, the conviction andsentence entered against the appellant by the Magistrate and acquitthe appellant.
G. P. S. DE SILVA, CJ. -1 agree.RAMANATHAN, J. -1 agree.