031-NLR-NLR-V-47-VANDER-POORTEN-Petitioner-and-VANDER-POORTEN-Respondent.pdf
Fonder Poor ten v. Vander Poorten.
89
1946Present : Soertsz S.P.J.VANDER POORTEN, Petitioner, and VANDER POORTEN,Respondent.Application in Revision, M. C. Kandy, 14,960.
Abetment—Private prosecution for abetment of forgery and of fabrication of falseevidence—Sanction of Attorney-General not necessary—Order of dischargewrongly entered for want of Attorney-OerteraV s sanction—Remedy is by wayof revision—Penal Code, ss. 434/109,190/109.
Although the sanction of the Attorney-General is necessary to enablea private party to prosecute the alleged offender in a prosecution forforgery, under section 454 of the Penal Code, or for fabrication of falseevidence, under section 190 of the Penal Code, the abetment of thoseoffences is not subject to the same requirement.
The remedy of a complainant against an order wrongly entered byCourt discharging the accused on the ground that sanction of theAttorney-General had not been obtained by the complainant is by way ofapplication in revision and not by way of appeal.
90
SOEiRTSZ A.CJ.— Vender Poor ten v. Vender Poorten.
T
HIS was an application to revise an order of discharge enteredby the Magistrate of Kandy
N.Nadarajah, K.C. (with him N. Gunaaekere and G. T. Samarwwick-reme), for the petitioner.
V. Perera, K.C. (with him A. Muttuaamy), for the respondent.
Cur. adv. vult.
February 1, 1946. Soertsz S.P.J.—
The petitioner lodged a complaint in the Magistrate’s Court at Kandyalleging that the two respondents named in his complaint had, in or aboutthe month of December, 1934, abetted one Antoine Joseph Vander Poortento commit the offence of forgery by instigating him to fabricate a docu-ment bearing a date in the year 1920, an offence which he alleged waspunishable under section 109 of the Penal Code read with section 454 ofthat Code. In support of the complaint he gave evidence stating thatthe intention of the respondents when they instigated Antoine JosephVander Poorten was to use that document in certain judicial proceedingsthen pending between the petitioner and the first respondent. On thiscomplaint the Magistrate issued summonses on the respondents andthereafter fixed the inquiry into the complaint on November 1, 1944.On that date the petitioner was examined-in-chief and was cross examined.Two witnesses were then examined and cross-examined and, thereafter,Counsel for the respondents took the objection that “ the case cannotproceed without the sanction of the Attorney-General ”.
This question was fixed for argument and after Counsel on both sideswere heard on it the Magistrate made order upholding the objection anddirecting that “the case be called on October 27, 1945, for the com-plainant to produce the necessary sanction of the Attorney-General ”.He added, “ If this sanction is not forthcoming, I shall make order in duecourse discharging the accused.” The petitioner prays that this order ofthe Magistrate be dealt with in the exercise of the revisionary powers ofthis Court. • When the matter came up before me Counsel for the respond-ents took a preliminary objection contending that an appeal lay from theorder made by the Magistrate and that, therefore, I ought not to dealwith the order by way of revision. I am clearly of the opinion that thiswas not a final order, and that therefore, no appeal lay and that revisionwas the proper course.
The question then that arises for determination is whether the sanctionof the Attorney-General is necessary for the prosecution of the offence oroffences foreshadowed by the petitioner’s case as it stood at the stageat which the Magistrate made his order. Those offences appear to be theoffence charged in the petitioner’s complaint of abetment of forgery andfor the offence that the Magistrate thought would be the offence if thefacts adumbrated were established, that is to say, the abetment of thefabrication of evidence for the purpose of being used at any stage of ajudicial proceeding or in relation to a judicial proceeding. It seems tome that both these offences are disclosed and that a proper charge wouldbe a charge framed in the manner indicated by section 180 of the CriminalProcedure Code.
SOERT8Z A.C.J.—Vander Poorten v. Vander Poortcn.
91
Now it is quite clear that for the prosecution of the offence of forgeryas described in section 452 of the Penal Code and of fabricating falseevidence for the purpose of using it in or in relation to a judicial proceed-ing made punishable under section 190 of the Penal Code, the sanction ofthe Attorney-General is necessary to enable a private party to prosecutethe alleged offender or offenders. Is the abetment of those offencessubject to the same requirement ? That is the question. It arose inMadras many years ago in the case of Queen Empress v. Abdul KadarSheriff Saheb1 and a Bench of which the eminent Indian Judge, JusticeSubramania Aiyar, was a member expressed their opinion on it thus—
“ The abetment of an offence is an offence of itself and is punishableunder separate sections of its own. None of those sections is mentionedin clause (b) of section 195 of the Code of Criminal Procedure and thereforesanction'need not be obtained in respect of them ”. Section 195 of theTndian Code is the same as section 147 of our Code. If I may respectfullysay so I am in complete agreement with that view and I am unable tofollow the learned Magistrate when he says that he is “ unable to followthat decision”. At any rate malo cum Scaligero errare. When the Legisla-ture thought fit to place the abetment of an offence on the same footingas the offence itself for the purpose of enabling oases to be compoundedit took care to say so in section 290 (3) of the Criminal Procedure Codeand it is a reasonable inference that the Legislature deliberately refrainedfrom making a similar provision in section 147 of the same Code. If thatinference is contrary to what the Legislature then intended or contraryto the view of the Legislature today, it is for that body to take thenecessary action.
I see no justification whatever for reading section 147 as if it containedthe words “ and the abetment of these offences ”. That would be tolegislate not to interpret. As was pointed out in the Madras case“ abetment of an offence is an offence of itself and is punishable underseparate sections of its own ”. Reference is generally made in charges ofabetment or attempt to the sections rendering the principal offencespunishable merely for convenience sake. In a case such as the presentcase it would, in my view, be a sufficient compliance in the requirementsof section 167 (3) and (4) of the Criminal Procedure Code if the chargeswere laid thus: did abet the offence of fabricating false evidence for thepurpose, &c., and did thereby commit an offence punishable under seotion109 of the Penal Code inasmuch as the said offence was not committedor did abet the offence of forgery and thereby commit an offence punish-able under section 109 of the Penal Code, inasmuch as that offence wasnot committed.
A word in regard to the submission made about the delay in prosecutingthe alleged offences. There is no doubt of that. But the prosecution ofthese offences is not barred till twenty years have elapsed.
I set aside the order made by the Magistrate and remit the case for.inquiry in due course.
Order set aside.
* 20 Madras 8.