146-NLR-NLR-V-22-THE-KING-v.-CORNELIS.pdf
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Present: Schneider A. J.
THE KING v. CORNELIS.
675-676—P. C. Balapitiya, 49,463.
Crown costs and compensation—Proceedings instituted on a written reportof the Peace Officer—Magistrate must record and considerobjections—Two charges—Causing police officer to'arrest and falseevidence—One sentence inappropriate—Prosecution fabrication^Summary punishment inappropriate—Contradictory statementsby a witness in Police Court—Criminal Procedure Code, ss. 197,484B 148.
A Magistrate has no power to order payment of Crown costs orcompensation when the proceedings are instituted by a writtenreport made to the Magistrate by a Peace Officer.
The Magistrate must record and consider any objection thecomplainant may make before ordering him to pay Crown costsand compensation under seotion 197 of the Criminal ProcedureCode.
Where a Magistrate charged the appellant (1) under section 437with having caused a Peace Officer to arrest the first accusedwithout sufficient grounds, and (2) with having given false evidencein the course of the case, and imposed a fine of Rs. 50 in respectof both offences,—
Held, that there should have been a separate sentence in respectof each offence.
Before a person is ordered to pay compensation under section437, he must be asked to show cause against it.
Where a Magistrate is of opinion that & prosecution is a fabrica-tion, proceedings under section 440 are not appropriate. Theperson giving false evidence should, under such circumstances,
be dealt with under section 190 of the Penal Code.
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A Magistrate cannot punish a witness under section 440 formaking two contradictory statements.
r put) facts appear from the judgment.
AmereseJcerd, for appellant.
August 4,1921. ' Schneider A. J—
The first appellant, who is a watcher employed under the secondappellant, charged two persons with the theft of some cinnamon.The second appellant was one of the witnesses for the prosecution.One of the persons charged was seized by the complainant and hismaster and given into the custody of the Police Officer of Polwatta,and was produced in police custody before the Court, After hearing38
1921.
1921.
SOHNBIDBB
A.J.
The Kingv. Comers
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the evidence of the complainant and bis master and that of anotherwitness, the Magistrate discharged the first aocused. The secondwas reported to he absoonding.
He then oharged the complainant with having brought a false andvexatious charge, and, without recording or considering any objectionthe complainant might have urged, condemned him to pay Rs. 10 ascompensation to the accusedand Rs. 5 as Crown costs. This order isclearly wrong tc: two reasonsFirst, he failed to comply with theprevisions of faction 197 (3) of the Criminal Procedure Code.Besides that ex A :ess provision of the la w, I would direct his attentiontr ihe case of Silva v. Joana.1 The second reason is even stronger.The proceedings in this case were instituted on a written reportmade to the Magistrate hy a Peaoe Officer, that is, under section148 (1) (6) of the Criminal Procedure Code. That being so, theprovisions of section 197 (1) do not apply because they are restrictedto cases instituted under section 148 (1) (a). But there is no appealagainst an ord »r to pay Crown costs (section 198), nor is there anappeal, except "non a matter of law, in regard to the order to paycompensation, the amount being Rs. 10. Both these orders areirregular in this case as I have pointed out. I would, therefore,act in revision and set them aside. The Magistrate then proceededto charge both the appellants : (1) Under section 437 with havingcaused a Peace Officer to arrest the first accused without sufficientgrounds; and (2) with having given false evidence in the course ofthis case, in that each of them made two statements contradictorythe one of the other. The purport of these contradictory statementswas the same in the case of each of the accused. Each of themat first denied having struck the first accused, but subsequentlymodified this by stating that when the accused stabbed back hewas struck on the hand. In respect of both these offences, he con-demned each of the accused to pay a fine of Rs. 50.
As the offences were distinct, the Magistrate should have imposedsentences in respect of each of the offences. It is not in order toimpose one sentence, especially in this instance, as the sum which isimposed to be paid under seotion 437 is awarded as compensationto the person wrongfully arrested, and the Magistrate has not directed.that any part of the sum of Rs. 50 is to he paid to the first accused.The order made under seotion 437 is not sustainable. It is not clearthat the appellants were asked to show cause. It was necessaryto do so. See the case of The King v. Perera.2 But as theappellants have made some sort of a statement, I will assume thatthey have been called upon for their defence. However, I would setaside this order. The Magistrate does not appear to have noticed astatement in the Peace Officer’s report that he questioned theaccused, and thu" ihe latter stated that he and his uncle (meaning theseoond accused) cut the cinnamon, and that his unole ran away, and
1 2 Bal. Reports 60.a (1915) 18 N. L. R. 916.
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that he, the first accused, was seized. This admission, apart fromanything stated by the appellants, is sufficient justification forthe headman to arrest the accused, although it would not be evidenceadmissible in a trial of the accused, it is admissible upon the questionwhether the accused was given into arrest upon insufficientground.
There remains the conviction under seotion 440. That too is bad.That seotion was not intended for a case suoh as this. The Magis-trate appears to have taken the view that the case for the prosecutionwas an entire fabrication, and therefore the evidence produced insupport of it false. False evidence given in such a case is punishableunder seotion 190 of the Penal Code, and should be the subjectmatter of a prosecution. It cannot be adequately dealt withsummarily under section 440 of the Criminal Procedure Code. Nordoes the mere making of two contradictory statements render awitness punishable under that section, as has been pointed put inthe case of Theneria v. Syanoris.1
I therefore acquit the appellants altogether.
1921.
SflHNWIPEB
A.J.
The Kingv. Cornelia
Set aside.