099-NLR-NLR-V-74-S.-E.-DE-ZOYSA-Appellant-and-INSPECTOR-OF-POLICE-S.-C.-I.-B.-Respondent.pdf
De Zoysa v. Inspector of Police
425
1971Present : AUes, J.S. E. DE ZOYSA, Appellant, and INSPECTOR OF POLICE (S. C. I. B.),RespondentjS. G. 220/70, with Application in Revision 322/71—M. C. Panadura, 1S701
■Criminal law—Mistake of law—Relevancy in regard to liability and the sentencethat should be passed—Charge of bigamy—Accused's misconception of factsand law—Stntcnce.
AISLES, J.—De Zoysa v. Inspector oj Police
4 26
An accused person’s misconception of the facts, though it relates to aprovision of law, is relevant and effective to negative a particulor statsof mind imputed to tho accused. Although ignorance or mistake of law isno defence, the offoct of tho misconception as to the law can bo taken intoconsideration in determining tho sentence that should bo imposed by Court.
Tho accused-petitioner was charged with bigamy. The evidence establishedthat he honestly and in good faith bolioved that his first marriago on Sth October1947 camo to an end by reason of tho repudiation of tho marriage by hi3 firstwife who had deserted him and was living with another man. Ho thereforehonestly believed that ho was legally entitlorl to contract his Eocond marriagoon 14th February 1953. No deceit was practised on his second wife.
Held, that, on tho question of sentence, tho Court should bo guided by whattho accused in good faith and honestly believed to exist and not tho actualfacts proved by the prosecution—only such a view could givo full scopo to thodoctrine of Mistake.
Appeal, with application in revision, from a judgment of theMagistrate’s Court, Panadura.
N. D. Jayasuriya, for the accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attorney-General.
6’ter. adv. vult.
July 24, 1971. Alles, J.—
There is no right of appeal in this case as the appellant pleaded guiltyto tho charge. The appeal is therefore rejected. However, with theappeal the petitioner-appellant has filed papers in revision and made anapplication to revise the sentence of nine months rigorous imprisonmentimposed on him for the offence of bigamy.
The petitioner, who is presently employed at the Port Cargo Corporationas a clerk, married one Ivoronchige Ipin Silva on Sth October 1947. Hehad one child by the marriage. Soon afterwards in August 194S thepetitioner lost his job and was unable to maintain his wife as be was notpossessed of any means whatsoever. Thereafter, as a result of differenceswith his wife, lie left the matrimonial home. In January 1949, Ipin Silvawent to live with her parents at Ncgombo and became the mistress of oneEdmund Fernando. She thereafter severed all connections with thepetitioner and continued to live as the mistress of Edmund Fernando.By this union she had ten children. She instituted proceedings fordivorce against the petitioner for malicious desertion and on 12th May1969 obtained a decree for divorce and married Edmund Fernando on14th October 1969.
According to the petitioner in June 1950, after securing employment,he visited Ipin Silva at her parental homo at Andiambalama close toNcgombo and learnt that she was being kept as the mistress of Edmund
ALLES, J.—De Zoysa v. Inspector oj Police
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Fernando and was informed by Ipin Silva that she had ceased torecognise him as her husband. Thereafter, believing honestly and in goodfaith, that his marriage with Ipin Silva had come to an end he contracteda second marriage with Yantrasaduge Daisy Elsida Fernando on 14thFebruary 1953. By this union he has nine children, the eldest of whomis 17 3rears of age and the youngest 6 years. Plaint against the petitionerwas filed on 10th August 1969, sixteen years after the date of thecommission of the alleged offence and after his first wife had obtained adecree for divorce. In his affidavit the petitioner states that, as aresult of his conviction, he would be dismissed from his employmentand consequently his present mistress and their nine children would bedeprived of their only source of sustenance and livelihood.
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The reason for the institution of criminal proceedings by the Police,after such a long lapse, remains a mystery. The petitioner’s convictionand incarceration for a period of nine mont hs can only result in disastrousconsequences for himself and his dependants.
Learned Counsel for the petitioner strongly urges that it would begrossly unjust to sentence the petitioner to any term of imprisonment inthe circumstances of this case. In support, he has submitted aninteresting argument on the aspect of punishment and sentence. Counselsubmits that the petitioner has stated in his affidavit that he, honestlyand in good faith, believed that his first marriage came to an end byreason of the repudiation of the marriage by his first wife. Havingentertained the misconception that his first marriage had come to an end,he honestly believed that he was legally entitled to contract the secondmarriage. He thereafter looked upon Elsida Fernando as his lawful w ifeand the issue from this union as lawful children and had them baptisedin church. Indeed, now that his first wife has obtained a decree fordivorce, there is no lawful impediment to his regularising his marriagewith Elsida Fernando and legitimising his children.
The petitioner’s misconception of the facts, though it relates to aprovision of law, is relevant and effective to negative a particular stateof mind imputed to an accused person. Undoubtedly it is no defence,because ignorance or mistake of law is no defence, but the effect of thismisconception as to the law' can be taken into consideration in determiningthe sentence that should be imposed by Court. In Regina v. TolsonJ(18S9) 60 Law Times S99 Mrs. ToIsod married on llt-h September 1880and her husband deserted her on 13th December 1881. She and herfather made inquiries about him and learnt from his elder brother, andfrom general report, that he had been lost on a vessel bound for America,which went down with all hands on board. On 10th June 1SS7, withinseven years of the alleged disappearance of her husband, supposingherself to be a widow she went through the ceremony of marriage withanother man and was subsequently indicted before the Assizes for bigamy.The question of law was reserved by the Assize Judge and was argued 1
1 (1S89) 60 Law Times 839.
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AX.LES, J.—De Zoyaa v. Inspector of Police
before a bench of 14 judges who by a majority of nine to five held thatit was a good defence to the indictment that Mrs. Tolson bona fide believedand had reasonable grounds for believing that her husband was dead.Stephen J., who was one of the majority, considered how mistake ingeneral, is relevant to liability and sentence, and stated at p. 907 :■—
“ I think it may be observed as a general rule that an alleged offenderis deemed to have acted under that state of facts which he in goodfaith and on reasonable grounds believed to exist when lie did the actalleged to be an offence. I am unable to suggest any real exceptionto this rule, nor has one ever been suggested to me. ”
For the same reason Stephen J. holds that a bona fide claim of right(i.e. a mistake of law) negatives larceny and man3’ of the offences againstthe Malicious Mischief Act—offences where the theftuous or wrongfulintention is material.
Professor Kenny in Iris Outlines of Criminal Law (16th Ed. p. 27S)states as follows :—
“ If property is taken by a true legal right, obviously no criminalwrong is committed by taking it. But immunity is carried further,because the common law has always admitted that a man’s honest,though erroneous or unreasonable, belief that he had a legal right totake the thing should negative criminal guilt. This clearly covers amistake of law and it is incorrect to state that a belief in a rightwhich has no existence in law will not- suffice. ”
In Ratanlal and Thakore—Law of Crimes (1961) 20th Ed. pp. 962, 963the same principle is recognised. Decisions of our Supreme Court havealso adopted this same principle. In Ponnu v. Sinnalambi1 24 N. L. R. 24Sthe accused who were renters of a grazing field, removed some goatsbelonging to the complainant, from whom money was due for animalstied on the pasture lands, in tire mistaken belief that they had the rightto do so to enforce payment (clearly a mistake of law). Schneider J.held that, although a mistake of law is no defence, the facts asserted andproved by the defence negdived a dishonest intent on their part andacquitted them. In Broome v. Carolis- 19N.L.R. 276 tlie accused pluckedcoconuts from a land, believing that the land was propert3' of a notary',on whose instructions he acted and who asserted title to the land on deeds.The conviction on the charge of theft was set aside on the ground that,in view of the misconception entertained b3T the accused, an intentionto cause wrongful gain or wrongful loss could not be imputed to theaccused.
In the present case, the misconception of law entertained by thepetitioner establishes an intention on his part to contract a lawfulmarriage, and at the same time negatives an intention to deceive ElsidaFernando and an intention to contract a bigamous marriage,
* {1022) 21 N. L. It. 24S.
(1916) 19 N. L. B. 276.
ALLES, J.—Dt Zoysa v. Inspector of Police
429
notwithstanding the fact that mistake of law by itself is no defence.On the question of sentence, the Court has to be guided by whatthe accused in good faith and honestly believed to exist and not theactual facts proved by the prosecution—only such a view can givefull scope to the doctrine of Mistake.
Learned Counsel for the petitioner also draws my. attention to themodern trend in England, which seems to take the view that the punish-ment meted out for the offence of bigamy is considered excessive byjurists and draws my attention to an article by Glanville Williams onLanguage and the Law (Law Quarterly Review Vol. 61 at p. 71). Dealingwith common errors in the Jaw, Glanville Williams criticises the severepunishment that can.be imposed for this offence in England. At onetime the offence was punishable with death but is now punishable withseven years rigorous imprisonment (Section 57 of the Offences againstPersons Act, 1861). According to Professor ICenny (17th Ed. p. 201) thepunishment was based on the broad ground of its “ involving an outrageupon public decency by the profanation of a solemn ceremony ”.Glanville Williams gives an apt illustration of the absurdity of such aview when he states :—
“ If A deserts his wife and bves with a mistress he commits no crime,either in deserting his wife or in committing adultery. Brit if he triesto make the position more regular by going through a form of marriagewith his mistress, then, even though the marriage is totally null andvoid (as it necessarily is), so that the whole ceremony is a mere emptyform of words, and even though he never thereafter cohabits withthe woman, he commits a felony. And this simply because he is' profaning a solemn ceremony ’. The ceremony may have takenplace in a Registrar's office, but that makes no difference to itssolemnity in the eye of the law. ”
There may he some justification to refer to " the profanation of a solemnceremony ” in a Christian country like England but can such a seriousview be taken in a country like Cej-lon where the majority of marriagesusually take place with the signing of the register in the Registrar’soffice ? Nevertheless our law' seeks to impose an even higher punishmentfor the offence than England has chosen to do. My observations mustnot be construed to mean that one can practice a deceit on a wrongedspouse with impunity and thereby go through a mock ceremony ofmarriage. Such conduct must necessarily be condemned and disapprovedby Courts of law. Where however, both parties to the bigamous marriagehave a guilty intent, their object is generally to hold themselves out tothe world as man and wife. As Glanville Williams remarks “ this is nodoubt to deceive the world at large but is anjone necessarily the worsefor that ? ”.
Glanville Williams also poses the question as to what are the harmfulsocial consequences of bigamy. He states that very often the maleoffender has told the woman before the ceremony that he is already
430
Jndrauolhie Kumarihamy v. Purijjala
married. “ A ceremony ” he says “ performed in such circumstancesis no more than a pathetic attempt to give a veneer of respectability towhat is in law an adulterous association Elsida Fernando was awareat tho time she got married to the petitioner that he was married toanother woman. In effect therefore the petitioner in this case hasmisused a legal ceremonial for the purpose of giving a decent appearanceto intercourse which he knew to be illicit and by going tlirough a marriageceremony in church, he did no more than give a “ veneer of respectability ”to his adulterous association, knowing full well that his first marriage 'was a complete failure. No deceit has been practised on his secondwife which is likely to shock tjie social conscience of any right thinkingperson.
I therefore think this is an appropriate case for the Court to invoke theprovisions of Section 325 (1) of the Criminal Procedure Code. Acting inrevision, I quash the sentence of nine months rigorous imprisonmentimposed on the petitioner by the Magistrate and without proceeding toconviction, I discharge the petitioner conditionally on a personal bond ina sum of Rs. 1,000 to be of good behaviour for a period of one 3rear.
Accused discharged conditionally.