Van Cuylenberg V. Sellamuttu

1933 Present: Dalton S.P.J.

VAN CUYLENBERG v. SELLAMUTTU.

 571-P. C. Colombo, 42,514.

Refusal to answer questions put by Public Servant-Person questioned under section 122 (2) of the Criminal Procedure-Penal Code, s. 177.

 A refusal to answer questions put to a person under the provisions of section 122 of the Criminal Procedure Code may form the basis of a charge under section 177 of the Penal Code.

APPEAL from a conviction by the Police Magistrate of Colombo.

R. L. Pereira, K.C. (with him H. V. Perera and T. F. C. Roberts), for accused, appellant.

Illangakoon, S.-G. (with him M. F. S. Pulle, C.C.), for complainant, respondent.

April 12, 1933. DALTON S.P.J.-

The appellant, Nagendra Sellamuttu, was charged with committing an offence under section 177 of the Penal Code, namely, being a person legally bound under section 122 (2) of the Criminal Procedure Code to answer all questions relating to an offence, namely, an offence under section 298 of the Penal Code relating to the violent death of one W. Podisingho, put to him by the complainant F. A. van Cuylenberg, Inspector of Police, he did on July 15th, 1932, refuse to answer the following question: " Did you take Yusoof Caffoor on the 12th night to

Slave Island in your small car? " put to him by the Inspector, a public servant in the exercise of his legal powers. The appellant has been convicted, sentenced to six months' simple imprisonment, and now appeals from that conviction.

The first ground of appeal urged was that a refusal to answer a question put to a person under the provisions of section 122 of the Criminal Procedure Code cannot form the basis of a charge laid under section 177 of the Penal Code, which it was argued had application to judicial proceedings only. Mr. Pereira referred me to Samarakkody v. Don James,1[(1897) 6 Tambyah's Reports 107] as being an authority for his contention. The facts of that case are not set out, but one is able to gather, I think, from the judgment that the accused man there, probably a headman, had failed to report a murder to the authorities, a duty required of him by section 22 of the Criminal Procedure Code. The learned Judge (Withers J.) held he could not be convicted of any offence under section 177 of the Penal Code, there being no refusal to answer questions put by a public servant. The learned Judge also held, but it did not seem necessary for the purpose of deciding the case, that the offence contemplated by section 177 is an offence committed during judicial proceedings. He refers to a dictum of Burnside C.J. in Pulle v. Goonesekere,2[(1886) 7 S. C. C. 206] in support of this opinion. I can find nothing, however, in the Criminal Procedure Code (Ordinance No. 3 of 1883) in force at the time of this decision similar to the provisions of Chapter XII. of the present Ordinance, and hence the question, as it arises now, would not have required to be considered.

It is to be noted, however, that the opinions expressed on this point in these two cases are not relied upon in Deheragoda v. Alwis,3[316 N. L. R. 233.] where a charge was laid against a person under section 177 for refusing to answer a question put to him by a Police officer under the provisions of section 122 of the Criminal Procedure Code, exactly as in this appeal now before me. Experienced counsel were engaged in that case, and there was no suggestion by counsel or Ennis J. that a charge would not lie under the circumstances against the accused. Mr. Pereira has failed to satisfy me that section 177 does not apply to a person who under section 122 of the Criminal Procedure Code is bound to answer truly questions put to him and refuses to do so.

The next ground urged was that appellant was not legally bound to answer the question put to him, as being a question which might have a tendency to expose him to a criminal charge.

I have already detailed certain of the facts leading up

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