WIJEGUNATILEKE v. JONI APPU

070-NLR-NLR-V-22-WIJEGUNATILEKE-v.-JONI-APPU.pdf


Present: Bertram C.J. and Schneider'A.J.WIJEGUNATILEKE v. JONI ~APPU.108—D. C. Kalutara, 8,394.
False statement made by a person before the police implicating another—•Inquiry by police under Criminal Procedure Code, chapter XII.—Privilege—Action for damages—Malicious prosecution.
At a preliminary inquiry by the police under chapter XII. of theCriminal Procedure Code the defendant made a false statementto the police implicating the plaintiff in an affray.
Held, that as the statement was made on a pr&ileged occasion,an action for damages did not lie against him.
T j THE facts appear from the judgment.
A. St. V. Jayawardene, for defendant, appellant.
H. J. G. Pereira, for plaintiff, respondent.
Cur. adv. vult.
December 2, 1920. Bertram C.J.—
I have read and agree with the judgment of Schneider A.J. Iwould only add that the conclusion of this Court appears to be inharmony with the principle observed in the Courts of South Africa.I cite the following passage from Nathan’s Common Law of SouthAfrica, vol. III., para. 1643, the case referred to not being availablelocally…
"The defendant must have set the criminal law in motion,!that is, he must have voluntarily instituted criminal,proceedings. If A is asked by the civil authorities,or, where martial law is in force, by the military author^ -ities, to make an affidavit concerning certain acts of B,and A makes an affidavit stating certain facts which,if true, would constitute a crime, in consequence whereofB is prosecuted at the public instance, A is in the positionof mere witness, and his affidavit will.not be regardedas having been made by him voluntarily with a view to.securing the prosecution of B. (Michauv. Weslermqn.1) ’’
1 10 C. T. R. 61L
( 232 )
1920.SdHNSXBBB A.J.—
Wifeguna* For the purpose of this appeal I would take the following to be
twice v.the facts :■—
Jon% Appu
The President of a Village Tribunal reported to the police thatan affray had taken place between some Tamil labourers on the .one side and a number of Sinhalese villagers on the other. ThePresident’s own observations told him that the affray was of aserious nature. An Assistant Superintendent of Police proceededto the spot and began an inquiry into the occurrence, but shortlyafterwards he handed this to a Sub-Inspector. This officer examineda number of witnesses. In the course of his inquiry it transpiredthat the boutique of Lewis, one of the witnesses examined by him,had been looted, and that the defendant owned the adjoiningboutique. The Sub-Inspector questioned the defendant. He toldhim that he knew nothing. The Sub-Inspector then pressed thedefendant to disclose what he knew, presumably because he hadbeen told that the defendant was present in his boutique at the timeof the occurrence. The defendant then stated to him that he sawthe plaintiff with a club among the crowd, but that he did notsee him do anything.
As a result of the inquiry the Sub-Inspector, under the instructionsof the Assistant Superintendent of Police, made a report to the PoliceCourt under section 148 (6) of the Criminal Procedure Code, in whichhe charged four Tamils and seven Sinhalese—the plaintiff beingthe fifth accused—with having committed an affray. In his listof witnesses for the prosecution the name of the defendant was notgiven. In the course of the Police Court trial the President of theVillage Tribunal when giving evidence stated that the names of theSinhalese who had run away from inside a boutique upon his approachwere given to him by Lewis and the defendant. The names werethose of the tenth and eleventh accused. The defendant wascalled as a witness presumably because of this statement. In hisevidence he stated that he identified the fifth, sixthr seventh,eighth, ninth, tenth, and eleventh accused, and three other Sinhalesein the crowd during the affray. These three others, whose nameshe mentioned, were not among those who were originally chargedby the police, nor were they charged subsequently. He said thefifth, eighth, and ninth accused had clubs in their hands. He saidhe could not say what each of the men, whose names he gave, haddone, but that he saw only the tenth and eleventh accused hittingthe second accused. The Magistrate acquitted the fifth (plaintiff),seventh, and eighth accused. He convicted the rest.
At the date of the affray there was ill-feeling between the plaintiffand the defendant over some dispute about land.
In this action the plaintiff sued to recover Rs. 5,000 as damages.His cause of actioh as set out in the plaint was that the defendant
1820.
( 233 )
“ had falsely and maliciously and without any reasonable cause ”given information to the police and caused him to be charged withriot and robbery and to be arrested and detained in custody, andthat the defendant had also given false evidence at the trial and“ had procured other false witnessesThe defendant denied those allegations, and pleaded that uponan inquiry by the police he had given information in regard to theplaintiff, and that no action lay against him.
The parties went to trial upon several issues, but towards the closeof the trial Mr. J. S. Jayawardene, who appeared for the defendant,raised the following issue: “ Is the action maintainable againstthe defendant for statements made by him at the police inquiry ? ”This seems to me the real and the only material issue in theaction.
The learned District Judge gave judgment for the plaintiff inthe sum of Rs. 1,000 as damages and costs. For this he givesas reason that there “ can be no doubt that though the policeprosecuted, it was defendant and he alone who gave plaintiff’sname to the police as one of the rioters. He, therefore, is respon-sible for plaintiff’s arrest and prosecution.”
I accept the learned District Judge’s findings that it was thedefendant and he alone who gave the plaintiff’s name to the police,and that the plaintiff was not present at the affray.
In his judgment the District Judge has not even referred to thereal issue in the action. He called the action one for malicious •prosecution, and regarded it as identical with the action of thatname as known to the English law. There are cases in our reportswhich have been decided upon the assumption that the Englishlaw action is the one which is recognized in our Courts. But itseems to me that the correct view of our law is that expressedby Bonser C.J. in Naide Hangidia v. Abraham Hamyx and byDe Sampayo J. in Podi Sitigho v. Appuhamy2 and Appuhamyv. Appyhamy?
Bonser C.J. said in the course of his judgment:—
SoHNBXDBB
A.J.
Wyeguna-tileke s.Joni Apjat
“ He then brought an action against the defendant in the formof an English action for malicious prosecution. Iasked what authority there is for such an action, andnone was produced. It is clear that an action onthis case for injury lies. That is a form of action freefrom the technicalities of the English form of action.”
If the present action be regarded as identical with the Englishlaw action of that name it is bound to fail, for in the circumstancesthe defendant cannot be said to have prosecuted the plaintiff.The defendant did no more than give information to the police, and 1
1 8. 0. Min. of Mar. 1,1898, O. R.
Kandy—28915.862.
8*
3 Bal^Rep. 146.
[1920) 21 N. Jj. & 430.
1»20%
SbHNttlDBB
A.J.
Wijeguna-tileke v.Joni Appu
( 234 )
the police after investigation prosecuted. In these oiroumstancesit has been held that the defendant not being the prosecutor noaction for malicious prosecution lay against him. TJduma LebbeMarikar v. SarangoJ Bow v. Pillai.2
The actio injwriarvm of the Roman-Dutch law is muoh widerin its scope than tho action for malicious prosecution known to theEnglish law. It lies whenever a person does an act dolo malo tothe detriment of another. The act of the defendant in this actionin maliciously and falsely stating that the plaintiff was at the sceneof the affray so that the plaintiff was charged by the police wouldentitle the plaintiff to maintain this action. But there is one factwhich, I think, negatives that right in this case. It is well-settledlaw, and the rule is inflexible, that statements made by a witnessare absolutely and unconditionally privileged, so that no actioncan be brought against him in respect of any evidence given by him,however false or malicious it may be. Dudnath Keendu v. MathurPrasad,3 Seaman v. Nether Cleft,4 Henderson v. Broomhead,6Kennedy v. Hilliard,6 Dawkins v. Rolispy? Sir Patrick Watson v.Mrs. J. P. Jones? “ This privilege is founded on grounds ofpublic policy in order to protect witnesses from being harassed byactions for damages and thereby deterred from speaking with thatfree and open mind which the,administration of justice demands.”
Earl of Halsbury L.C. said in the case of Sir Patrick Watsonv. Mrs. J. P. Jowes8 ;—
“ The remedy against a witness who has given evidence whichis false and injurious to another is to'indict him forperjury; but for very obvious reasons the conduct oflegal procedure by Courts of Justice, with the necessityof compelling witnesses to attend, involves as one of thenecessities of the administration of justice the immunityof witnesses from actions being brought against'themin respect of evidence they have given.”
It is evident, therefore, that the plaintiff’s action, in so far as itis founded upon the allegation that the defendant had given falseevidence in the Police Court, is bound to fail. There is no evidencewhatever that the defendant procured false witnesses as alleged inthe plaint. There remains,'therefore, the question, whether, inrespect of the statement made by the defendant before the sergeantof police, he can claim the same privilege as that which the lawaffords to the statements he made when giving evidence before thePolice Court. I think he can. The case of Sir Patrick Watson v.Mrs. J. P. Jones? to which I have already referred, is high authorityfor the proposition that the privilege which protects a witness in
i 5 S. C. C. 230.8 4 H. & N. 669.
8I. L. R. 26 Mad. 362.• 10 I. C. L. Rep. N. S. 196.
» I. L. R. 24 All 817.'L.R.7 H. L. 744.
4 L. R. C. P. D. 640.8 L. R. {1905) A. O. 480.
( 235 )
respect of his evidence in the box also protects him against theconsequence of statements made to the client and solicitor inpreferring the proof for trial. To quote again from the Earl ofHalsbury:—
“ It is very obvious that the public polioy which renders theprotection of witnesses necessary for the administrationof justice must as a necessary consequence involve thatwhich is a step towards and is part of the administrationof justice, namely, the preliminary examination ofwitnesses to find out what they can prove. It may bethat to some extent it .seems to impose a hardship, butafter all the hardship is not to be compared with thatwhich would arise if it were impossible to administerjustice, because people would be afraid to give theirtestimony.”
v 1920.
Schneider
A.J.
Wijeguna-
tUehev.
JotiiAppu
It seems to me that the position of the defendant in this action ismuch stronger than the position of the defendant in the case whichI have cited, inasmuch as here the defendant made his statementin circumstances in which he could have been compelled to disclosewhat he knew. The provisions of chapter XII. of the CriminalProcedure Code authorize the investigation which was conductedby the Sub-Inspector of Police, and also authorize him to compelthe attendance of any person. They impose upon every personexamined in the course of any proceedings under that chapterthe duty to answer all questions relating to the case which maybe put to him by a police officer. The defendant, therefore, wasunder a legal duty to disclose what he knew. He did not give anyinformation or make any statement to the police voluntarily. Toall intents and purposes he was in the position of a witness whenhe made the statement complained of to the police, except for thefact that he was not under an oath or affirmation. That statementwas made in the course of a preliminary examination of witnessesto find out what they could prove, and therefore came within theprinciple of the decision I have cited. To deny to the defendantin those circumstances the privilege which he would have hadhad the statement to the Sub-Inspector of Police been rfiade beforethe Police Court is to deny to him any protection at all. For ifwhen he is sued in a Civil Court for damages because of the state-ment made by him, and he pleads that the statement was made'asa witness, it is open to the plaintiff to say that the action is notfounded upon the evidence given before the Police Court, but uponthe statement made at the investigation preliminary to the trial,the defendant would in every such instance be exposed to an action. for damages. Apart from the authority I have cited, it seems tome that the provisions of section 122 (3) of the Criminal ProcedureCode protect the defendant, for it is there enacted that the statement
( 236 )
1920.
9
SOHNBXDBR
A.J.
TFijeguna-tiUtev.Joni Appu
should not be used for any purpose other than the purposes mention-ed in that section. An action of this kind is not one of those purposes.Therefore, the statement may not be used for the purpose of thisaction* The remedy for giving false information to the police isprovided for in section 180 of the Penal Code.
I would accordingly hold that the statement to the Sub-Inspectorwas made upon a privileged occasion and that no action lay.
therefore, allow the appeal, with costs, and dismiss the plaintiff’saction, with costs.
Set aside.