103-NLR-NLR-V-57-S.-K.-SUBRAMANIAM-Appellant-and-THE-QUEEN-Respondent.pdf
[lx the Piuvv Council].
1956Present: Lord Oaksey, Lord Tucker, Lord Cohen,
•Lord Keith of Avonholm and Mr. L. M. D. de Silva
S.1C. SUBRAMANIAM, Appellant, and THE QUEEN-, Respondent
Privy Council Ajipeal No. 20 of 1955
S. C. 4—M.C. Point Pedro, 16,525 (1st Northern Circuit, 1954)
Content jit of Court—Perjury—Exercise oj summary powers of punishment—Principlesapplicable—Criminal Procedure Cotie, s. 440.
The summary power conferred by section 440 (t) of the Criminal ProcedureCode is one which should only bo used when it is clear beyond doubtthat a witness in the course of his evidence in the caso being tried has com-mitted perjury. It was never intended that in the oxercise of the power under _section 440 (!) in tho course of n criminal trial a subsidiary criminal investi-gation should he set on foot not against the prisoner charged but against thowitness in the case. If such an investigation is necessary it can and shouldbe set on foot under section 440 (4).'
J^-PPEAL, by sjieeial ioavo, against an order of a Commissioner ofAssize of tho Supreme Court-.
Ph incus Qituss, Q.C., with It. K. JIuntloo and Bidcn Ashbroolce, for thowi t-noss – appe I lan t.
T. O. Kdlock, for tho Crown.
Car. adr. vull.
April 10, 1956. [Delivered by Lord Oaksev]—
This is an appeal, by special leave, against the Order of a Commissionerof Assize of the Sujmomo Court of Ceylon, dated the 18th March, 1954,wheieby the appellant was sentenced to one month’s rigorous imprison-ment for having given false evidence during the course of a trial for amurder on tho 27th November, 1952, beforo the said Commissioner who,in sentencing tho appellant, purported to exerciso the summary powersvestod in him under section 440 (1) of tho Criminal Procedure Code ofCeylon..
TOC o "1-5" h z
The appellant has served tho said sentence.-
It is convenient to set out section 440 of the Criminal Procedure Code '
Summary “440.(1) If any person giving evidence on any subject
punishment jn open Court in anv judicial ijroce'edincr under this Code
for perjury .“ 'A°
in opengives, in tho opinion of the Couit before which the judicial
Court.proceeding is. held, falso cvidenco within tho meaning of
•Section 1SS of ■ the – Ponul Code it shall be Lawful for the Court, if. such Court bo the Supreme Court, summarily to sentence such witnessISi.vii ..
» J. iV U 55111—1,530 (0/56)
' as for a contempt of tlio Court to imprisonment either simple orrigorous for any period not exceeding threo months or to fine suchwitness in any sum not oxcoeding two hundred rupees ; or if suchCourt he an inferior Court to older such witness to pay a fine notexceeding fifty rupees and in default of payment of such fine to undergorigorous imprisonment for any period not exceeding two months.Whenever the power given by this Sect ion is exercised b a Court otherthan the Supreme Court the Judge or Magistrate of such Court shellrecord tho reasons fir imposing such fine.
“ (2) Any person whe has undergone any sentence of imprisonmentor paid any fino imposed und-r this Section shall not he liable to hepunished again for the same offence.
“ (3) Any person against whom any order is made by any Courtother than tho Supreme Court under Sub-section (1) of this Sectionmay appeal to tho Supremo Court and ovciv such Appoal shall liesubject to the provisions of this Code.
(-t) In lieu of exercising the power given by this Section the Courtmay if it thinks fit transmit tho record of the judicial proceeding totho Attornoy-Gonoral to enable him to oxorciso tho powers conferredon him by this Code or proceed in manner provided by Section 3S0.
•“ (5) Nothing in tin's Section contained shall bo construed as dero-
gating from or limiting tho powers and jurisdiction of tho SupremoCourt or the Judges thereof. ”
Tho appellant was sentenced in the following circumstances :—
Tho accused man. one Voorakathoy Tharuinan alios Thnrnialingam, wascharged under section 2-96 of the Penal Code with the murder of oneXandasanyy on the 27th Novomber, 19;i2, at or near a road junctionknown as Nclliadi Junction.
Tlio appellant- was at that- time the Village Headman of Koravctt i North,a village which abutted on the north side of Nclliadi Junction which wastho scono oT tho offence. Tlio village of Kara vet ti Wost abutted on thesouth side of Nclliadi Junction.'
Tlio caso for tho prosecution appears to havo boon that the deceasedwas seriously assaulted and beaten by tlio accused and two others (whowere not before tho Court) on the north side of Nclliadi Junction soonafter it had become dark (i.e. about 6.30-7 p.m.). His assailants lefttho injured man lying on the road whore lie was attacked but subsequentlyho was removed to the southern side of tlio Junction by two innocentpersons who placed him under a tamarind tree. After the attack theattackers went away but tho accused returned shortly after and findingtho injured person under tho tree attacked him again, this time with aknife. Tho injured man died as a result of the. injuries he had thusreceived.■
Tho caso for tho prosecution was supported pi incipallv by the ovidoncoof two alleged eye-witnesses and by tho evidence of polico offic-crs amiothers (tho appellant among them) who had either assisted at tho policeinvestigation or otherwise had played some part 1 heroin,
The appellant was called for tho prusocution and testified that Jio wasnot an cyo witnoss nor in possession of information which dofinitolyidentified any person with tho crime. Ho was first Informed of tho ofiencoat about 7.30 p.m. on tho day in question and within 10 minutes or soof his rocoiving sucli information ho wont to Xclliadi Junction : On bisarrival at tho Junction lie found tlio injured man alive but gravelywoundod lying under a treo within tho jurisdiction of tlio Karavotti WestHeadman in whose absence ho (tho appellant) assumed jurisdiction to deal. with the onicigency : Ho reported tho offenco to tho polico by telephonevery shortly after—at about 7.-id p.m.—and until the police arrived atabout 9 p.m. he carried out his duties as best ho could :At about S. Id
p.m. ho saiil he sent a written message to tho Karavotti West Headmanasking for his car for the romoval of the injured person but tho messagewas not acceptetl and was returned to him. He was unable to find theletter. The Kaiavetti West Headman did not arrive on the sceno beforeabout 9 p.m. :Tho appellant tried vainly to enlist- tho assistance of car
owners for removing tho injured person who died eventually at aboutS.30 p.m. i.e. before tho arrival of either the police or tho Karavctti WestHoadman. Later tho appellant telephoned to tho hospital anil arrangedfor tho removal of tho deceased.
Before tho arrival of tho police c-r the .Karavotti West Headman hoquestioned, among others, one Kaudappu a neighbouring boutique kooporand recorded his statement :Tho appellant stated that there was a
general reluctance on tho part of several poisons who had boon questionedto come forward with any information of t-h – attack on the deceased :He
deniod that there was any truth in the suggestion that “ we all of us gottogether and suppressed tho fact as to who tho assailant was. ” ThoKaravctti West Headman was not called as a witness.
The Commissioner appears to have formed the opinion that evidence ofthe murder had been and was being suppressed and ho therefore on hisown initiative called a nuinbir of wituessos and cross examined the pro-socution witnosscs ami tho witnesses ho had called not in coimection withthe alleged murder which ho was trying but in connection with the allegedsuppression of evidence of that murder. In tho course of this cross exa-mination ho formed tho opinion that tho appellant and sorao of the policeand other witnesses wero committing pet jury and proceeded to direct thoacquittal of tho prisoner although he stated that he had not tho slightestdoubt that the prisoner was guilty and that he had with tho assistance ofthe police and of tho appellant suppressed tho evidence. At a laterhearing tho Commissioner after hearing counsel for tho police and otherwitnesses and the appellant- sentenced them to various torms ofimprisonment.-' .
In their Lordships’ opinion the courso taken by tho learned Com-missioner was misconceived. Tho summary powor conferred by section440 (1) is one which should only bo used when it is clear beyond doubtthat .a witness in the courso of his evidonco iu the case, being triod hascommitted porjury. – It was in their Lordships’ opinion never intendedDust in tho oxorciso of tho power under section 440 (I) in the course of acriminal trial a subsidiary criminal investigation should be sot oii foot notagainst tho prisoner chargod but against the witnossos in tho case..
If siicli an investigation is necessary it can and shoidd Ihj ,sol cm Cool,under, soot ion 410 (4). Their Lordships will lliorcforo humbly ad v isoHer Majesty that the appeal should bo allowed and tho Order of the Com-missioner of Assizo Supreme Court of Ceylon-dated the lStli March,1954, set aside. In all tho circumstances of the case they think it right tomake the unusual ordor that the appellant shall have his costs of thoapponl and of tho 2>ot it ion for special leave..
Appeal allowcil.