GUNAPALA v. ATTORNEY GENERAL

009-SLLR-SLLR-2000-V-2-GUNAPALA-v.-ATTORNEY-GENERAL.pdf


GUNAPALA
v.
ATTORNEY GENERAL
COURT OF APPEAL.
YAPA, J.
KULATILAKE, J.
CA 58-59/98.
HC Galle 1581.
13th. IT1-” DECEMBER, 1999.
Evidence Ordinance, S.154 – Treating witness as an adverse witness -Code of Criminal Procedure Act S. 195(g), S.449(l) – Contempt of Court -Opportunity of answering the charge – Constitution, Article 13(3) – Reasonsfor imposing sentence – Mandatory.
The first prosecution witness appellant was the first witness for theprosecution. In the course of his evidence the prosecution preferred anapplication under S. 154 Evidence Ordinance seeking permission ofcourt to treat the Appellant as an adverse witness. This was allowed.Thereafter Court had purported to act in terms ofS.449(l) of the Code ofCriminal Procedure and convicted the Appellant for contempt of Court.
Held :
(1) The trial Judge had proceeded with a subsidiary criminalinvestigation against the witness purporting to act under S.449( 1) in thesame day after the conclusion of his evidence, in the course of the maintrial itself.
The procedure followed deprived the Appellant of the opportunity ofexplanation and possibility of correcting misapprehensions as to whathad been in fact said or meant.
There is no reason why a witness in the main case in a High Courttrial when charged with an offence of contempt of Court for giving falseevidence, should be deprived of legal representation.
APPEAL from an order of the High Court of Galle.
Cases referred to :
Chang Han King vs Piggot (1909) AC 312 (JC)
Subramaniam vs Queen (1868) 5 Moore NS 111 16 ER 457
CA
Gunapala u. Attorney General (Kulattialai, J.)
131
Cooray us Ceylon Para Rubber Co. 23 NLR 321 at 326
Muttusamy vs Attorney General SC Application 81/94HCA 302/94 MC Mt. Lavinia 793993 – SCM 6. 10. 1994
Daniel Appuhamy vs Queen 64 NLR 487
Tillekeratne vs Officer in Charge Pugoda Police Station [ 1997] 1Sri.L.R.
Nimal Muttukumarana for 1“ Prosecution witness Appellant.
Yasantha Kodagoda SSC for Attorney General.
Cur. adv. vult.
January 11, 2000.
KULATILAKA, J.The "first prosecution witness appellant” TiranagamageGunapala (hereinafter referred to as the appellant) was thefirst witness for the prosecution in the High Court of Galle caseNo. 1581 at the trial of accused Amrose Moses who wasindicted of having committed the murder of Laku NarangodageWimalasena, an offence punishable under Section 296 of thePenal Code.
In the course of his evidence the prosecution has preferredan application under Section 154 of the Evidence Ordinanceseeking permission of Court to treat the appellant as anadverse witness and that application had been allowed bycourt. Thereafter the learned trial Judge has purported to actin terms of section 449(1) of the Code of C riminal Procedu re ActNo. 15 of 1979 and by his order dated 07. 12. 1998 convictedthe appellant of Contempt of Court and sentenced him to aterm of two years rigorous imprisonment. The appellant hasappealed against that order in terms of section 449(3) of theCode of Criminal Procedure Act.
We have considered the submissions made by the learnedcounsel who appeared for the appellant as well as the learnedSenior State Counsel. The relevant section under which thelearned trial Judge has acted reads as follows :
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Sri Lanka Law Reports
1200012 Sri LR.
449(1) “If any person giving evidence on any subject inopen Court in any judicial proceeding under this Codegives, in the opinion of the court before which the judicialproceeding is held, false evidence within the meaning ofsection 188 of the Penal Code it shall be lawful for thecourt, if such court be the Supreme court or Court ofAppeal or High court, summarily to sentence such witnessas for a contempt of the court to imprisonment eithersimple or rigorous for any period not exceeding two yearsor to fine such witness in any sum not exceeding onethousand rupees; or if such court be an inferior court toorder such witness to pay a fine not exceeding five hundredrupees or to undergo rigorous or simple imprisonment forany period not exceeding three months. Whenever thepower given by this section is exercised by a court otherthan the Supreme court or Court of Appeal, the Judge ofsuch court shall record the reasons for imposing suchsentence.”
It is pertinent to note that the prosecution endeavour wasto adduce appellant's evidence as direct evidence of an eyewitness. Albeit this was not to be so because he had to betreated as an adverse witness by the prosecution. Havingtaken this step the learned State Counsel had marked twopassages where the appellant had contradicted the evidencepreviously given by him at the non summary inquiry before theMagistrate. The first contradiction reads as follows:
“when I was engaged in a conversation with him a
person by the name Moses came to my house. Moses is theaccused”.
This passage had been marked as PI. The second contra-diction reads as follows:
‘Then Wimalassena having said that it was not necessaryto raise a question now, abused in filth. He further saidthat he was not afraid of anybody”.
CA
Gunapala v. Attorney General (Kidatilaka, J.)
133
This passage has been marked as P2.
We observed that the learned trial Judge had confrontedthe appellant only with P2. In Chang Han King vs. Piggott"1 itwas held that when it is not suggested that the whole of awitness’s evidence is false it is imperative that the witnessshould not be left in doubt as to which parts of his evidence arealleged to be false. Such a lapse on the part of the trial Judgewould leave the accused in doubt as to the matter on which inthe opinion of Court the appellant had given false evidence. Inthis case the learned trial Judge by not confronting theappellant with the contradiction PI has in our opinion made agrave error of law.
The appellant Tiranagamege Gunapala was the firstwitness called by the prosecution. His evidence was led on07. 12. 1992. The learned trial Judge had proceeded with asubsidiary criminal investigation against the witness(appellant) purporting to exercise the power under Section449( 1) on he same day at the conclusion of his evidence in thecourse of the main trial itself. Such a procedure was frownedupon by Their Lordships in Subramaniam vs. Queen121.
Learned Senior State Counsel cited the judgment of DeSampayo, J. in Cooray vs. The Ceylon Para Rubber Co., Ltd..131at 326 which was a rei vindicalio action which held that theproper time for dealing with a witness under Section 440 of theCriminal Procedure Code (similar to Section 449 of the Code ofCriminal Procedure Act No. 15 of 1979) is after the conclusionof his own evidence and after the close of the case of the partywho calls him or of the whole case if the completion of the trialis likely to render more apparent the falsehood of anystatement. Nevertheless in the instant case where theallegation against the appellantwas that he gave falseevidenceat the High court trial within the meaning of Section 188 of thePenal Code, we are of the view that the Court should be guidedby the provisions of Section 448(1) of the Code of criminal
132
Sri Lanka Law Reports
120001 2 Sri LR.
449(1) "If any person giving evidence on any subject inopen Court in any judicial proceeding under this Codegives, in the opinion of the court before which the judicialproceeding is held, false evidence within the meaning ofsection 188 of the Penal Code it shall be lawful for thecourt, if such court be the Supreme court or Court ofAppeal or High court, summarily to sentence such witnessas for a contempt of the court to imprisonment eithersimple or rigorous for any period not exceeding two yearsor to fine such witness in any sum not exceeding onethousand rupees; or if such court be an inferior court toorder such witness to pay a fine not exceeding five hundredrupees or to undergo rigorous or simple imprisonment forany period not exceeding three months. Whenever thepower given by this section is exercised by a court otherthan the Supreme court or Court of Appeal, the Judge ofsuch court shall record the reasons for imposing suchsentence.”
It is pertinent to note that the prosecution endeavour wasto adduce appellant's evidence as direct evidence of an eyewitness. Albeit this was not to be so because he had to betreated as an adverse witness by the prosecution. Havingtaken this step the learned State Counsel had marked twopassages where the appellant had contradicted the evidencepreviously given by him at the non summary inquiry before theMagistrate. The first contradiction reads as follows:
“when I was engaged in a conversation with him a
person by the name Moses came to my house. Moses is theaccused”.
This passage had been marked as PI. The second contra-diction reads as follows;
‘Then Wimalassena having said that it was not necessaryto raise a question now, abused in filth. He further saidthat he was not afraid of anybody”.
CA
Cunapala u. Attorney General (Kulatilaka, J.)
133
This passage has been marked as P2.
We observed that the learned trial Judge had confrontedthe appellant only with P2. In Chang Han King us. Piggotta> itwas held that when it is not suggested that the whole of awitness’s evidence is false it is imperative that the witnessshould not be left in doubt as to which parts of his evidence arealleged to be false. Such a lapse on the part of the trial Judgewould leave the accused in doubt as to the'matter on which inthe opinion of Court the appellant had given false evidence. Inthis case the learned trial Judge by not confronting theappellant with the contradiction PI has in our opinion made agrave error of law.
The appellant Tiranagamege Gunapala was the firstwitness called by the prosecution. His evidence was led on07. 12. 1992. The learned trial Judge had proceeded with asubsidiary criminal investigation against the witness(appellant) purporting to exercise the power under Section449(1) on the same day at the conclusion of his evidence in thecourse of the main trial itself. Such a procedure was frownedupon by Their Lordships in Subramaniam us. Queen121.
Lear ned Senior State Counsel cited the judgment of DeSampayo, J. in Coorag us. The Ceylon Para Rubber Co., LtcL,l3>at 326 which was a rei uindicatio action which held that theproper time for dealing with a witness under Section 440 of theCriminal Procedure Code (similar to Section 449 of the Code ofCriminal Procedure Act No. 15 of 1979) is after the conclusionof his own evidence and after the close of the case of the partywho calls him or of the whole case if the completion of the trialis likely to render more apparent the falsehood of anystatement. Nevertheless in the instant case where theallegation against the appellant was that he gave false evidenceat the High court trial within the meaning of Section 188 of thePenal Code, we are of the view that the Court should be guidedby the provisions of Section 448(1) of the Code of criminal
134
Sri Lanka Law Reports
1200012 Sri LR.
Procedure Act where it is laid down that a summary trialagainst a witness who had given false evidence in the HighCourt irrespective of whether the trial was by a jury or by aJudge without a jury should be upon the conclusion of thattrial. Such a procedure would not in any way prejudice thecase against the prosecution or the defence in the main case.
On a perusal of the proceedings against the appellant wefind that the very day he was treated as an adverse witness hewas asked whether he had any cause to show as to why heshould not be punished in terms of Section 449 of the Code ofCriminal Procedure Act. His meek reply was as follows:
He was not asked whether he admitted or denied givingfalse evidence.
In Muttusamy us. Attorney-General141 decided on 6,hOctober 1994, Fernando. J observed that the gist or theessence of the accusation should be communicated to theappellant and afford him an opportunity to furnish anexplanation.
In Daniel Appuhamy vs. Queen™ at pages 483 and 484,Lord Chancellor referred to the fact that the witness was notasked whether he admitted or denied giving false evidence butonly to show cause why he should not be dealt with. At the trialthe appellant had begged his Lordships pardon. The LordChancellor delivering his judgment was highly critical of thisparticular procedure adopted by the trial Court.
In the instant case the learned High Court Judge hasfollowed such a procedure and thereby the appellant wasdeprived of the opportunity of explanation and possibly ofcorrecting misapprehension as to what had been in fact saidor meant. In this regard vide the decision of Justice Kulatungein Tillekeratne vs. Officer- in-Charge of Pugoda Police Station101.
“My Lords, It was due to forgetfulness.

CA
Gunapala v. Attorney General (Kulatilaka, J.)
135
The learned counsel who appeared for the appellantsubmitted that the appellant was not given an opportunity ofanswering the charge of Contempt of Court levelled againsthim. He could not avail himself of the services of anAttorney-at-Law. In this regard the learned counsel referred usto Article 13(3) of the Constitution which reads as follows:
“Any person charged with an offence shall be entitled to beheard in person or by an Attomey-at-Law at a fair trial bya competent Court”.
Under Section 195(g) of the Criminal Procedure Code oneof the duties of the High Court Judge when serving anindictment on an accused person is to ask the accusedwhether he requires an Attomey-at-Law to be assigned to himfor his defence and if he so requests to assign a counsel. We seeno reason why a witness in the main case in a High Court trialwhen charged with an offence of Contempt of Court for givingfalse evidence which is a criminal offence should be deprivedof such a facility. Hence, we see merit and substance in thesubmissions tendered to Court by the learned counsel for theappellant.
Further on a careful scrutiny of the order made by thelearned trial Judge, we find that he has failed to give reasonsfor the conviction. In terms of Section 449(1) of the Code ofCriminal Procedure Act it is a mandatory requirement that thejudge should give reasons for imposing sentence. His failure todo so is a grave error of law.
. For the aforesaid reasons we are of the considered viewthat the impugned proceedings are invalid. In thecircumstances we set aside the conviction and the sentenceimposed by the learned trial Judge and accordingly we acquitthe appellant.
YAPA, J. I agree.
Appeal allowed.