1951 Present : Gratiaen J. and Gunasekara J.

In re KANAGARATNAM et al.

S. C. 19-21-D. C. Jaffna, 6,457B

Contempt of Court-Proceedings for sequestration before judgment-Wilfully making false statement-Ingredients-Bias of trial judge-Civil Procedure Code, s. 656.

The mere swearing of an affidavit which contains a statement that is factually incorrect cannot amount to a contempt of court within the meaning of section 656 of the Civil Procedure Code. The provisions of that section empower a court to punish as for a contempt only a person wilfully making a false statement.
A charge of contempt of court ought not to be tried by a judge who has already reached the conclusion that the accused person is guilty.

APPEAL from a judgment of the District Court, Jaffna.

H. V. Perera, K.C., with T. Somasunderam, for the appellants.

R. A. Kannangara, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

August 20, 1951. GUNASEKARA J.-

Each of the three appellants was convicted in the District Court of Jaffna on a charge of contempt and they were fined Rs. 1,000, Rs. 500 and Rs. 1,000, respectively. At the close of the argument in appeal we set aside the convictions and sentences and said that we would give our reasons later.

The charges relate to the making of two affidavits by the second and third appellants and the use of them by the first.

The first appellant, who had instituted an action against one Subramaniam for the recovery of a sum of Rs. 5,780.83, obtained from the District Court an order under section 653 of the Civil Procedure Code for sequestration of the latter's property before judgment. The petition for sequestration, which is dated the 21st March, 1950, was supported by affidavits of the same date from the three appellants. The first appellant averred that Subramaniam was making arrangements to alienate his properties fraudulently in order to avoid payment of the first appellant's claim and that the other two appellants had informed him of those arrangements. The second and third appellants in their affidavits declared that they had overheard conversations between Subramaniam and other persons which indicated that he was trying to sell a house and garden belonging to him ; the second appellant deposing to such a conversation that he claimed to have overheard on the 19th March, 1950, when be was opposite Subramaniam's drug store, which is in Jaffna ; and the third appellant to one alleged to have been over-heard by him on the 20th March, 1950, when he was inside this store. It has been established that Subramaniam was in Colombo during the whole of the 19th and 20th March, 1950, and could not have been in Jaffna at any time on those two days.

The charges that the appellants were called upon to meet are set out in the summonses that were served on them. The contempt alleged against the first appellant is formulated as follows :-

" That you filed two affidavits dated 21st day of March, 1950, in Court, to the effect that the defendant Nagalingam Subramaniam of Nallur, Jaffna, was in Jaffna on the 19th and 20th March, 1950, when in fact the said Nagalingam Subramaniam was in Colombo on the said dates, which fact was, to your knowledge false, and obtained an order for sequestration against the property of the said defendant."

The learned Crown Counsel agreed that there was no evidence to prove that the first appellant knew that the statements in question were false and he therefore, quite properly, did not support the conviction of this appellant. He also pointed out that the provisions of section 656 of the Civil Procedure Code, under which the learned Additional District Judge purported to deal with the appellants, empower a Court to punish as for a contempt only a person wilfully making a false statement and not also a person who merely files in Court an affidavit containing a false statement. Curiously enough, the formal order of conviction