038-NLR-NLR-V-39-DHARMALINGAM-CHETTY-v.-VADIVEL-CHETTY-et-al.pdf
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Dharmalingam Chetty v. Vadivel Chetty.
1937Present: Soertsz J.
DHARMALINGAM CHETTY v. VADIVEL CHETTY et al.
355—P. C. Colombo, 6,873.
Order of discharge—Charge made without sanction of Attorney-General—Order not final—Giving false evidence in course of an investigationpreliminary to proceedings in Court—Sanction not required—Orderof discharge illegal—Penal Code, s. 190—Criminal Procedure Code,s. 147 (1) CtO.
Where a person is charged with giving false evidence in the courseof, or for the purpose of, an investigation directed by law preliminaryto a proceeding in Court, the offence is not committed “ in any Courtor in relation to any proceeding in any Court ” within the meaning ofsection 147 (1) (b) of the Criminal Procedure Code, and the previoussanction of the Attorney-General is not required before a Police Magis-tate takes cognizance of the offence.
An order discharging an accused on the ground that the Magistrateis debarred from taking cognizance of the offence because the com-plainant had not obtained the sanction of the Attorney-General is not afinal order and is not appealable. If the order of discharge is wronglymade, i.e., if the sanction of the Attorney-General was unnecessarythe complainant is entitled to be relieved of the order.
^ PPEAL from an order of the Police Magistrate of Colombo.
J. R. Jayavoardene, for complainant, appellant.
C. E. S. Pereira (with him Dodwell Gunawardena), for accused,respondents.
{1910) 13 N. L. R. 195.
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SOERTSZ J.—Dharmalingam Chetty v. Vadivel Chetty.
July 28, 1937. Soertsz J.—
An interesting point arises for determination in this appeal. Re-spondent’s Counsel takes the preliminary objection that the appellanthas no right of appeal inasmuch as the order with which he says he isdissatisfied, is not a judgment or fined order in terms of section 338 (1)of the Criminal Procedure Code.
The order from which this appeal is taken is an order made by thePolice Magistrate of Colombo discharging the two accused on the groundthat he is debarred by section 147 (1) (b) of the Criminal Procedure Codefrom taking cognizance of the offence alleged by the complainant againstthe accused, under section 190 of the Penal Code, because the complainanthas not obtained the previous sanction of the Attorney-General. If thisorder is right, the respondent’s objection is entitled to prevail, for in thatevent, it cannot be said that it is a final order. It is not an orderdisposing of the matter brought to the notice of the Court, but an orderpostponing consideration cf it till a condition has been satisfied. If,however, the order was wrongly made, that is to say, if the sanctionof the Attorney-General is not necessary, then the preliminary objectionfails and the appellant is entitled to be relieved from the order.
The question, then, is whether in this case the previous sanctionof the Attorney-General is necessary to entitle the complainant to askthe Court to take cognizance of his complaint. Section 147 (1) (b) ofthe Criminal Procedure Code enacts that ‘ no Court shall take cogniz-ance of any offence punishable under section 190…. of the
Penal Code when such offence is committed in or in relation to anyproceedings in any court except with the previous sanction of the Attorney-General”. The words in italics make it clear that it is not in respectof every offence against section 190 of the Penal Code that the previoussanction of the Attorney-General is required, but in respect onlyof such offences as are committed in any Court, or in relation to anyproceeding pending in any Court. Section 190 of the Penal Code fallsinto two parts. The first part deals with (1) the giving of false evidencein any stage of a judicial proceeding; (2) the fabricating of false evidencefor the purpose of being used in any stage of a judicial proceeding. Thesecond part deals with (3) the giving of false evidence but not in any stageof a judicial proceeding; (4) the fabricating of false evidence for thepurpose of being used otherwise than in any stage of a judicial proceeding.
The three ‘ explanations ’ appended to section 190 of the Penal Codeextend the meaning of the words ‘ judicial proceeding ’ and bring withintheir scope—(1) a proceeding in a Court of Justice; (2) a trial beforea Court Martial; (3) a trial before a Military Court of Request; (4) theinvestigation directed by law preliminary to a proceeding before a court ofjustice; (5) an investigation directed by a court-of justice according to law.The giving of false evidence before any of these tribunals and thefabrication of false evidence for the purpose of being used in any stage ofa proceeding before these tribunals are visited with heavier punishmentthan is meted out in respect of the giving of false evidence elsewhere,or the fabricating of false evidence to be used in-any proceeding elsewhere.But when it comes to the matter of the previous sanction of the Attorney-General, the position is different. Section 147 of the Criminal Procedure
118
Tillainathan v. Nagalingam.
Code departs from the phraseology section 190 of the Penal Codeemploys to differentiate between offences committed in relation to ajudicial proceeding and other offences, and uses the words in or in relationto any proceeding in any court for the purpose of stating the occasion onwhich the sanction of the Attorney-General is required.
It expressly states that it is required not in the cases of offencescommitted in any judicial proceeding or in relation to any judicialproceeding, but in the cases of offences committed in or in relation toany proceeding in any Court. The meaning of the word Court in section147 has not been extended by explanation or otherwise in the way inwhich the words ‘ Judicial proceeding ’ have been extended in section 190.The Magistrate has overlooked this fact. He says, “ A wider meaninghas been given to the word ‘ Court ’ in the footnote by explanation 2to section 190 That is not so. A wider meaning than the wordsusually bear has been given to “ judicial proceeding
The word ‘ Court ’ must be given the meaning it has in the CourtsOrdinance, No. 1 of 1889.
It follows therefore that the previous sanction of the Attorney-Generalis not necessary in the case of an offence committed in the course of orfor the purpose of an investigation directed by law preliminary to aproceeding in any Court, for such an offence is not committed in any Courtor in relation to any proceeding in any Court, although it is committedin a stage of a judicial proceeding so far as section 190 of the Penal Codeis concerned.
I set aside the order of the Police Magistrate and send the case backfor inquiry.
Set aside.