QUEEN v. FERNANDO et al.

QUEEN v. FERNANDO et al.

D. C., Kegalla, 1,006,

Criminal Procedure Code, s. 440 (1)-Summary punishment for false evidence in open Court-Irregularity-Evidence,.

Where a witness stated in the Police Court that the third accused pulled the complainant out of the house, and in the District Court that the fourth accused did so, and the District Judge found him guilty of contempt of Court under section 440 (1) of the Criminal Procedure Code,-

Held, that if the evidence given in the Police Court was false, the District Judge had no jurisdiction to punish the witness for it.

The mere fact that a statement made before the District Judge does not accord with, and is even altogether inconsistent with, a statement made by him in a Police Court, is no evidence that the witness has committed perjury in the District Court.

In proceeding under section 440 (1), it is the duty of the District Judge to find which of the statements made by the witness in the two Courts is false.

And the District Judge has no right to re-model the evidence given by a witness in a Police Court in order to convict him of perjury.

IN this case of robbery and voluntarily causing hurt the District Judge, after hearing the witnesses for the prosecution, recorded his opinion as follows: -

" I will not call upon the accused for their defence, as the " evidence for the prosecution appears to be unreliable. The wit-" nesses give a different version to the version given by them in " the Police Court. I therefore acquit and discharge the accused."

The District Judge then called upon three of these witnesses to show cause why they should not be convicted of contempt of Court (under section 440 (1) of the Criminal Procedure Code) for deliberately giving false evidence within the meaning of section 188 of the Penal Code. He read out to each of them the contradictory statements made by them before him and the committing Magistrate.

They had no cause to show.

He found them guilty of contempt of Court and sentenced each of them to a fine of Its. 25, in default whereof to one month's rigorous imprisonment.

Two of these witnesses appealed.

E. Jayawardena, for appellants.

Bonser. C.J., quashed the conviction and acquitted the appellants by the following judgments: -

In this case the appellant Appuhamy gave evidence for the prosecution at a criminal trial in the District Court of Kegalla.

At the conclusion of the trial the District Judge records this: - " I invite Appuhamy's attention to the statement made to-day: The fourth accused Agonis pulled out the complainant, and ho: stated that the third accused dragged the complainant out,' in " the Police Court,

" I believe this witness Appuhamy gave false evidence within " the meaning of section 188 of the Code.

I call upon him to show cause why he should not be convicted " of contempt of Court. He states: ' I have no cause to show.' I " convict him of contempt of Court under section 440 (1), Criminal Procedure Code, and sentence him to pay a fine of Rs. 25, in " default to one month's rigorous imprisonment."

The defendant has appealed on the ground that there was nothing recorded that justified the judge in making that order and I agree with him. I gather that the alleged perjury was that whereas he stated in the Police Court that the third accused pulled the complainant out of the house, he said in the District Court that the fourth accused pulled him out. Now, both of these statements might have been true. The District Judge has not found that one of them was untrue, nor which of them was untrue. It may very well be that Appuhamy told an untruth in the Police Court and told the truth in the District Court. If that be so, the District Judge had no jurisdiction to punish him for having committed perjury in the Police Court. The only case in which he can make the order is if he is satisfied that the witness has committed perjury before him; and the mere fact that a statement

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