067-NLR-NLR-V-13-SIVAKOLUNTHU-v.-CHELLIAH.pdf
Present: Mr. Justice Wood Kenton.
July 28,1916
S1VAKOLUNTHU u. CHELLIAH.
P, Jaffna, 810.
Polite Magistrate—Power to punish summarily for contempt of Court—False evidence—Contradictory statements.
A Magistrate has no power to punish summarily as lor contemptof Court a witness for making two contradictory statements.
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HE complainant in this case charged the accused with robberyand hurt. In his evidence complainant proceeded to say:— .
(a) Accused is. not on bad terms with me. In January last heapplied for tobacco plants to me.
l refused to give. Since then he is on bad terms with me. Thatis why he did this to me. .
(c) I do not know why he did this to me.
The learned Magistrate recorded his opinion that the evidencedisclosed barefaced perjury, and read to the complainant the threestatements (in italics) as to the motive for the assault, and calledupon him to show cause why he should not be summarily dealtwith under section 440 (1) of the Criminal Procedure Code forgiving false evidence; the complainant had no cause to show, and hewas convicted and fined Rs. 50 (two months’ rigorous imprisonmentin default).
The complainant appealed.
Balasingham, for the appellant*.—The charge does not specifywhich of the statements is false. A witness can be punished formaking contradictory statements only by the Supreme Court or theDistrict Court (section 439, Criminal Procedure Code). A PoliceMagistrate cannot convict for contempt of Court under section 440,Criminal Procedure Code, unless he is able to hold that any particularstatement is false (Theneris v. Sayeneris King v. Dias 2).
July 28, 1910. Wood Renton J.—
His Lordship set out the facts, and continued:^
It is clear that the Police Magistrate has made the inconsistency ofthe statements just mentioned the. ground of the conviction. Hedoes not say directly which of these inconsistent statements he holdsto be false, for his subsequent finding that what occurred was
* 1 {1904) 1. Bed. 1,1 {1903) 6. N. L. JR. 258.
10-J. N. A 89108 15/49)
( 290 )
July28,1910 " probably ” an altercation on account of the bad feeling between the—— parties does not, in my opinion, amount to a distinct finding thatRbstvom J ^e aPPeUant had spoken the truth when he said that the accused
' had been on bad terms with him since the incident of the refusal of
Sivakolimthu the tobacco plants. A Police Magistrate has no power to convict av. Chelliah person under section 440, sub-section (1), of the Criminal ProcedureCode, solely on the ground that he had made inconsistent statements,
. some of which were false. Section 439 of the Code, as amended bi-section 2 of Ordinance No. 2 of 1906, confers power on the SupremeCourt and on the District Court to convict on that ground, safe-guarded, however, by the requirements of a regular, althoughsummary, trial. It is the duty of any Court, acting under section440 of the Code, not only to confront the person charged with thespeoific statements on which the Court is relying, but also to findwhich of these statements is or are false. In the present case therehas been no finding to that effect, and the conviction and sentencecannot stand. I have no sympathy whatever with mere technicalobjections where they are taken for the first time in appeal, and Iam prepared to interpret section 425 of the Criminal Procedure Codein the wide sense which the Legislature clearly had in view in enactingit. But I am not prepared to waive any of the requirements by whichthe Legislature and the Supreme Court have safeguarded the exerciseof the extremely valuable powers conferred on the legal tribunals bysection 440, sub-section (1). of the Criminal Procedure Code, v" togive a Court, which has failed to satisfy the requirements in i>hefirst instance, any further opportunity of .supplying defects. In myopinion the only way to ensure the correct application of the powersunder section 440 of the Code of Criminal Procedure in the Courts offirst instance is to let it be clearly and widely understood that anyflaw in their exercise will be fatal to a conviction. On these groundsI set aside the conviction and sentence, and direct the acquittal ofthe appellant.
Appeal allowed.