043-NLR-NLR-V-08-THE-KING-v.-PONNIAH.pdf
( 216 )
1903.
June 16.
THE KING v. PONNIAH.
D. 0., Batticaloa, 2,278 (Criminal).
Falseevidence—Indictment—Evidence in support ofcharge—Conviction—
Power of Commissioner appointed under Ordinance No. 9 of 1872 toexamine witnesses not duly summoned—Proper course of proceedingsbefore the Commissioner.
A charge of giving false evidence should contain a distinct assertionwith regard to each statement intended to be characterized as false;that it was made; that it is untrue in fact; and that the accused knew itwas so when he made it.f
The recital in an indictment of a lengthy deposition without anyallegations how many statements therein contained are false to theknowledge of the accused is much too indefinite and misleading tojustify his being called upon to plead.
When a person is charged with giving false evidence, the whole of hisevidence should be proved, not merely a portion of it/ Where it is allegedthat the evidence was given in the course of an inquiry held by a Courtor before a Commissioner appointed under Ordinance No. 9 of 1872, allthe proceedings ought to be produced to enable the Court to judge oftheir character.
In the case of evidence given before a Commissioner it must appearthat the Commission was read over to the accused; that he was madeaware of the nature and scope of the inquiry; and that he was warned that anyevidence he gave might be used against him.
The Commissioner cannot exercise any of the powers conferred on him bysection 2 of the Ordinance No. 9 of 1872 in respect of any persons who have notbeen duly summoned.
Section 3 does not limit the Commissioner's power to administer oath only topersons duly summoned before him.
T
HE facts of this case are fully set forth in the judgment ofthe Supreme Court.
DornhoT8t, K.C., H. J, G. Pereira, and E. W. Jayawardene, forappellant.
M. Fernando, C.C., for respondent.
16th June, 1903. Layard, C.J.—
, <
The appellant in this case was charged with the offence ofgiving false evidence before Mr. W. H. Moor, a Commissionerappointed by the Governor under Ordinance No. 9 of 1872, and# was convicted in the District Court of Batticaloa, in that he didin the course of a judicial inquiry before such Commissioner,wilfully give false evidence upon examination on oath, and wassentenced to undergo two years’ rigorous imprisonment.
Several (Objections have been taken to the indictment presentedin this case. With reference to the first objection which was
( 217 )
taken, it is contended that to constitute the offence oi giving falseevidence before a Commissioner appointed under the OrdinanceNo. 9 of 1872 it is essential that the persons should have beenserved with a summons Under the hand of the Commissioner,requiring such person's attendance before him at a time and placeto be mentioned in the summons, and further that such being thecase it would be necessary to aver in the indictment that theappellant was duly summoned to give evidence at a fixed timeand place mentioned in the summons. Now, the object of theOrdinance No. 9 of 1872, to be gathered from the preamble thereof,is to enable the Governor to obtain information upon any matterwhich the Governor may think necessary through the means of aCommissioner to be appointed by him to hear evidence and toreport thereon.
The first section of the Ordinance, after authorizing the appoint-ment of a Commissioner to inquire and report upon any matterstated in his Commission, provides that “ it shall be lawful ” forthe Commissioner so appointed^ by a summons under his hand, torequire the attendance before him, at a time and place to bementioned in the summons, of any person whose evidence. shallbe material in the opinion of the Commissioner.
The second section gives to the Commissioner .all the powers ofa District Court in respect of persons who may have been sum-moned by him for failing to appear, or refusing to be sworn, or toanswer questions, or to produce documents called for by theCommissioner. The Commissioner, however, is not allowed toexercise any of such powers before obtaining the sanction of theGovernor in manner provided by that section.
So far it seems to me clear that the Commissioner cannotexercise any of the powers conferred on him by section 2 inrespect of any persons who have not been duly summoned.
It is contended, however, that he cannot examine any witnesswho is not so summoned, because the duty is cast upon him bysection 1 to issue a summons in manner therein appointed: thatthe words " it shall be lawful,” as they are us£d in that section,are imperative. Reading the whole of the Ordinance together, itdoes not appear to me that that would be a proper construction toplace on the provisions of section 1. The object of the Ordinancewas to enable the Commissioner appointed to obtain evidence on *the matters submitted to him for inquiry, and it appears to me thatthe Commissioner is entitled to examine any person who mayvoluntarily tender himself as a witness, or who, being asked togive evidence, expresses his willingness to do so. He cannot, ofcourse, deal with such persons under section 2, as that section is
1003.
June 16.
Layabd, CJv
1903.
June 16.
I4AYABD, C.J.
( 218 )
limited to persons upon whom any summons issued under section1 has been Served.
«
The question still remains as to whether he can administer anoath under section 3 to any person other than one duly summonedbefore him. That section, it will be seen, differs from section 2,and empowers a Commissioner to administer oaths to all personawho shall be examined before him, in no way limiting hisauthority merely to administer oaths to persons duly summonedin manner provided by section 1, and it further renders everyperson examined upon oath before such Commissioner, who shallwilfully give false evidence in the course of such examination,liable to be punished for giving such false evidence. I cannotuphold the first objection to the indictment.
Now, the indictment in this case runs as follows:—
“ That on or about the 26th day of May, 1902, at*Batticaloa.you,in the course of an inquiry before W. H. Moor, Esq., a Commis-sioner appointed by the Governor, with the advice of the Execu-tive Council,underOrdinance No.9 of 1872, didwilfully give
false evidenceuponexamination onoath by statingas follows: —
1 am sure I issued all that salt on the 3rd and 4th March(meaning thereby, 3rd and 4th March, 1902). I did not issue anyof the 1,025 cwt. afterwards. I am certain I issued to Louis Sinhoon the 3rd or4th March the wholeof the 475 cwt.he purchased
on the 3rd March.I am certain 1did not issue that to him on
the 3rd or 4th April (meaning thereby, 3rd or 4th April, 1902). Iissued to Muttayah Chetty the 30 cwt. he paid for on the 3rdMarch on the 3rd or 4th March. I am certain I did not issuethat to him on the 3rd April. I issued to Ramasamy the 70 cwt.he purchased on the 3rd March either on the 3rd or 4th March.
I am certain I did not keep him waiting for that till April. Iissued to Nagappen the 30 cwt. he paid for on the 3rd March tohim on the 3rd or 4th March. I am certain I did not keep himwaiting till April. I issued the 65 cwt. David Jesu Das paidfor on the 3rd March on the 3rd or 4th March. I issued the30 cwt. Hendrick Appu paid for on the 3rd March to him onthe 3rd or 4th March. I issued the 10 cwt. Isanhami purchasedall on the date he paid for it. I did not issue 3 cwt. before theEaster holidays and 7 cwt. after the Easter holidays. I did notkeep any of the traders who paid for salt on the 3rd March waitingfor their salt till April. I am certain of that. The salt thenverified (meaning the salt verified by the head clerk of theKachcheri and the Chief Mudaliyar) was all the salt that liad beenlanded on those days. None of the salt that had been landed onthose days (meaning the 2nd and 3rd April, 1902, and subsequent
( 219 )
days) had been issued before this verification. None of it wasissued to traders before the verification by the Chief Mudaliyafand the head clerk;’—which statements you either knew or be-lieved to be false, and did not believe to be true, and you havethereby committed an offence punishable under section 190 of theCeylon Penal Code.”
I learn from Crown Counsel that this involved charge was in-tended to inform the appellant that he had made no less than twelvefalse statements. I must confess that I was unable to gather bymerely looking at the indictment how many statements, or whatpart of the statements set out in the indictment, were alleged bythe Crown to be .false. It has been held in India, as pointed outby the appellant’s counsel, that a charge of giving false evidenceshould contain a distinct assertion with regard to each statementintended to be characterized as false; that it was made; that itis untrue in fact; and that the accused knew it was so when hemade it. It appears to me that it is only right that when theCrown intends to establish that two or more statements containedin a lengthy deposition are false, it should distinctly set out eachsuch statement separately, and state that it is not true in fact, andthat the accused knew that it was so when he made it. Thepresent indictment recites a lengthy deposition and does not allegehow,many statements contained in it the Crown intends to relyupon as false, and whether the Crown intends to prove that thewhole of the salt mentioned in the deposition was not actuallydelivered to the persons to whom the accused swore it wasdelivered, or. whether a smaller quantity than that alleged wasdelivered, or whether, as found by the Judge in two instances,the appellant had falsely sworn that the salt was delivered on adifferent date to that on which it was actually delivered. It musthave been as embarrassing to the appellant and his Counsel tomeet the vague charge laid against him as it has been to thisCourt to understand what the Crown intended to allege and proveon this indictment.
In my opinion not only was the indictment not sufficientlyprecise, but it was absolutely unfair to the accused to call uponhim* to plead to an indictment which is so indefinite andso misleading. I think the only course open to this Court is toquash the indictment and all proceedings thereunder, includingthe conviction of the appellant, and I do not. hesitate to do so, asI believe there was not sufficient legal evidence before the Courtto convict the appellant, even had the indictment been in order.
The appellant has been convicted of giving false evidence whenre-examined bv Mr. Moor on the 26th May, 1900, at the appellant’s
1903.
June 16*
Latabd, C, J.
( 220 )
1903. own house. Mr. Moor states in his deposition that he had.
June 16. examined him previously on the same subject, and that Ms-Lay ard c J examination as recorded on the document marked B waB onlya re-examination of the appellant to see if he would re-considerthe statements he had previously made. Assuming that thestatement recorded in B could be received as proof of the oralevidence given by the appellant on the 26th May, 1900, there isabsolutely no evidence what the appellant said when he waspreviously examined before Mr. Moor. When a person is chargedwith giving false evidence the whole of the evidence given byhim should be proved, not merely a portion of it, a# it is quitepossible there may be something in another part of the evidencewhich materially modifies the words charged as false evidence, soas to show that they are not false. In England it has beendecided that if perjury has been committed at the trial of acause all the evidence given by the defendant relative to the •facts on which the perjury is assigned must be proved. (Beg. v.Jones, Peake 37, and Reg. v. Rowley, R. & M. 269). In thisparticular case it is most important to know what the originalstatements were which Mr. Moor thought the appellant oughtto have ithe opportunity of re-considering. It is obvious thatit is quite possible that they might materially modify the state-ment subsequently made. Further, if they did not modify it, itwould enable the Court to decide the question whether 'the. falseevidence was given on a material point.
The Commissioner, I understand, was to report upon an allegeddefalcation in the salt stores at Batticaloa. It does not appearfrom the evidence that the appellant was informed of the exactterms of the commission. Assuming, however, he was, it is notclear that the date of the delivery of the salt was material to theinquiry. I presume the point at issue was whether the salt wasdelivered or not. When I suggested to Crown Counsel that if awitness deposed to a wrong date he would not be guilty of theoffence of perjury, he expressed surprise, as he said it was notnecessary under the Penal Code that the false evidence shouldhave been given on a material point. I agree with him thatunder the Penal Code it is not necessary that the false evidenceshould have been given on a material point, yet the question of' materiality has a bearing upon the question as to whether the> state-ment was made intentionally. The appellant might be swearingtruly to a very material fact, viz., the delivery of the salt<to theindividuals named, and yet unintentionally swear that thedelivery took place on a wrong date. It is by no means certain thatthe appellant was aware that the questions put to him were for
( 221 )
i
the purpose of eliciting from him the date of the delivery. The 1903.former examination of the appellant would have been useful for ^unethe purpose of enabling the Court to arrive at the conclusion Layakd, C.J,whether the actual date was material or not! Where it is allegedthat the evidence was given in the course of an inquiry held by^
a Court, or, as in this case, before a Commissioner appointed undertha Ordinance No. 9 of 1872, all the proceedings ought to beproduced to enable the Court to judge of their character (Beg.v. Carr, 10 Cox, 364),
I am further doubtful in this case whether the document Bwas legally admissible as evidence of the statements madeby the appellant. On .the face of the document B there isnothing to show that it forms part of an inquiry being held by-Mr. Moor as Commissioner. It has no head-note, and thereis no means of identifying it with any other proceedings heldfeefore Mr. Moor. It does not appear that Mr. Moor's Commissionwas ever read oyer to the appellant, nor that he was informedthat Mr. Moor was a Commissioner duly appointed under theOrdinance* No. 9 of 1872, nor that he was made aware of thenature of Mr. Moor's inquiry and what the exact scope of Mr.
Moor's inquiry was. If the object of Mr. Moor's inquiry was toestablish a defalcation on a particular date of salt in Governmentstored in the charge of the appellant, before being examined byMr. Moor he should have been so informed, and further he shouldjhave been warned that any evidence he gave might be usedagainst him. This does not appear to have been done. Thestatements on which the prosecution is founded were oral andcertainly up to the passing of our Evidence Ordinance the evidenceof the appellant would have to be proved by the testimony ofsome person who was present. In this case it could have beenproved by Mr. Moor, and he would be allowed to refresh hismemory by reference to document B, and that document might beused as corroborative evidence to support Mr. Moor's testimony.
Even if Mr. Moor had been a Judge, his notes, prior to the enact-ment of our Evidence Ordinance, could only be used in evidence
v <>
to refresh his memory, and they would be otherwise inadmissible
(see Reg. v. Child, 6 Cox, Criminal Cases, p. 197).
*
It has been held, however, by this Court that in view of theprovisions of section 80 of the Evidence Ordinance, where evidence*was recorded by a judicial officer in discharge of his official dutiesand ih the manner prescribed by the Criminal Procedure Code,ijhe Court is bound to presume that the record of the evidencetaken purporting to be signed by a judicial officer was genuine,and that the evidence was duly taken, and that the record of such18-
( 222 )
' 1003. officer was the only admissible proof of the evidence so recordedJune 16. (Reg. v. Appuwa, 2 N. L. R. 6). The distinction drawn inLatabjTc.J. judgment between the English case I have referred to aboveand the case then under consideration of this Court was that inthe English case there was no legal obligation to record theevidence, whilst our minor judiciary are under the obligation byour statute law to record all the evidence given before them.Applying this principle to the present case, the law nowhereenacts that a Commissioner appointed under Ordinance No. 9 of1872 is to record in writing the evidence taken by him, nor doesit prescribe any form in which such evidence is to be recorded.I think, therefore, document B was not rightly received in evidencein this case. Even if B was properly received in evidence, theappellant, in my opinion, has been wrongly convicted. Theconviction on the face of it,is bad, because, as admitted by Crow?]Counsel, if the appellant has committed any offence, it is one undersection 3 of Ordinance No. 9 of 1872. The District Judge hashowever, convicted him of giving false evidence in a judicialinquiry, an offence under section 190 of the Penal Code.
Now the appellant did not give evidence in any judicial inquiry,but before a Commissioner appointed under Ordinance No. 9 of 1872.and if he committed any offence he should have been convictedfor breach of section 3 of that Ordinance, which would haverendered him liable to the punishment prescribed by section190 of the Penal Code. I quash the indictment, proceedings, andconviction and discharge the appellant.