TEYVANAI v. NATHANIEL.

TEYVANAI v. NATHANIEL.

P. C, Hatton, 37,194.

False evidence-Summary punishment of-Criminal Procedure Code, s. 440.

The procedure prescribed by section 440 of the Criminal Procedure Code for the summary punishment of a person giving false evidence is not obligatory on the Magistrate. If he thinks fit, he may transmit the record to the Attorney-General or send the offender before a Police Court to be dealt with in the ordinary way.

It was not intended by the Legislature to dispose of cases of giving false evidence summarily, where such evidence involved the concoction of a false charge and-the subornation of false testimony.

THIS was an appeal from a conviction under section 440 of the Criminal Procedure Code for giving false evidence. The facts of the case are fully set out in judgment of the Supreme Court.

Bawa, for appellants.

H. J. C. Pereira, for respondent.

Cur. adv. vult.

* The decisions pronounced by the Supreme Court in this case and in Andris v. Juwanis (2 N. L. R. 77), D.C., Ratnapura, 540 (Koch's Reports 32), Queen v. Fernando (4 N. L. R. 218), and Achchi Kannu v. Ago Appu (5 N. L. R. 87), appear to establish the following principles:

(1) That the punishment of false evidence summarily as a contempt of court is justifiable either where a statement is on the face of the witness' deposition a false one, or where it is shown to be false by a contradictory statement of the same witness in the course of a previous judicial proceeding relating to the same matter.

(2) That the summary method should not be adopted where, by reason of a conflict of evidence between witnesses, one or more of them is believed by the Magistrate or Judge to have given false evidence; or where the evidence found to be false was given in support of a concocted charge, or as the result of a conspiracy to suborn witnesses.

(3) That in the latter class of cases it is the duty of the Magistrate or Judge to forward the record to the Attorney-General, or proceed in manner provided in section 380 of the Criminal Procedure Code.-Ed.

14th October, 1902. Wendt, J.-

In this case two women, the appellants, charged one Nathaniel with using criminal force to them with intent to outrage their modesty, an offence punishable with two years' rigorous imprisonment and fine and whipping under section 345 of the Penal Code. Their story was that the accused, who was the conductor on Osborne estate, and in charge of the labour force to which these women belonged, ordered them to go to a secluded part of the estate for work, and there committed the offence, first on one of the appellants and then on the other. The acts deposed to by the appellants, if true, established the charge against the conductor. They called one witness Narayanen, who to a certain extent corroborated them. Before his evidence was taken the Magistrate, on the depositions of the women, issued a warrant against the accused, who, when he appeared, made a statement to the effect that the charge was absolutely false. He said it was got up against him because of his strictness with the labour force, and owing to his having earlier in the day in question had occasion to find fault with some coolies for shirking work, and this had led to an assault upon him by a number of coolies, among whom were Narayanen and the husband of one of the appellants. The case not being summarily triable, the accused did not give evidence, but he called two witnesses, who affirmed to having seen the attack on accused, the appellants being also present at it.

The Magistrate, without submitting the case to the Attorney-General, discharged the accused, considering the charge grossly untrue. He believed that the appellants had committed perjury in the course of the proceedings and proceeded against them under section 440 of the Criminal Procedure Code. The passage in first appellant's deposition upon which he elected to assign perjury was this: " Then he pulled me by bot

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