R v Maghaya (Criminal Review Case 1 of 1937) [1937] ZMHCNR 9 (31 December 1937)

136 Vol. I] R. v. MACHAYA. A Crim in al R e v ie w Ca se of 1937. Penal Code section 106A (a)—giving false information to a public servant with intent to cause the latter to do or omit some act— offence not con­ stituted where information is not volunteered but given in answer to questions put by such public servant. It has been held by a Court in India that the expression “ give any information ” does not include answers to questions put by police or other Government officers and this decision has been now followed by the High Court of Northern Rhodesia. Francis, J .: This is a conviction under the Penal Code section 106A (a) of a native, Machaya, who was charged with the offence o f giving false information to a district officer. The record has been submitted for review for the reasons given in the Magistrate’s note set forth hereunder. The charge against the accused is briefly that he, when questioned con­ cerning the payment of his tax for 1936, informed the district officer that he had already paid it. This statement was subsequently found to be false. The accused at first pleaded “ Not Guilty ” , but subsequently stated that he did not wish to deny having told a lie. This was entered as a plea of “ Guilty ” , and the Court proceeded to conviction, and sentenced him to six weeks I. H. L. The Magistrate in his note on the case observed as follow s: “ On the facts admitted by the accused it seemed to the Court that the accused had committed the offence charged under section 106A (a) of the Penal Code and he was accordingly convicted. Several similar charges have been brought before the Court (at Luanshya) during the past few months and in each case a sentence of six weeks imprisonment with hard labour has been passed, but the Court has felt a growing reluctance to impose such a sentence. The Native Tax Ordinance (Cap. 65) does not make it an offence for a native to make a false statement with regard to native t a x ; were such provision made, prosecution for such false statements would be made under that Ordinance. On examining such Ordinances as the Income Tax Ordinance (Cap. 64) section 58 (1), Non-Native Personal Tax Ordinance 1934, section 8, the Native Registration Ordinance (Cap. 59), section 10 (2) and the Alien Natives Registration Ordinance (Cap. 60), section 11 (i) (b), it is seen that in each case it is an offence to make a false statement in respect of a material matter under the particular Ordinance in question. Why was no similar provision made under the Native Tax Ordinance ? The Law of Northern Rhodesia has always included an enactment for the imposition and collection of native ta x and so far as I can find such law has never made it a specific offence for a native to make a false statement regarding native tax to an officer responsible for its collection. [Vol. I This being so, the Court now questions the desirability of imposing a sentence of six weeks I. H. L. in the present case; as however such a sentence has been imposed in the past in similar cases, the Court has passed similar sentence in respect of the present accused, but in so doing the Court announced that the case would be forwarded to the High Court for review.” Section 106A under which the charge is framed corresponds almost word for word with section 182 of the Indian Penal Code and in the absence o f any corresponding English enactment I propose to be guided by Indian judicial authority. The position o f the district officer in this case is not dissimilar from that o f a police officer who in the course of the investigation o f an offence, is dealing with a lying witness, and I do not know of any English law which penalises even a suspected person in giving false information to a police­ man in reply to questions put by him. It has been held in India (Sohoni I. P. C., Vol. I, p. 613) that the expression “ give any information ” does not include answers to questions put by police or other Government officers, but is restricted merely to the act o f volunteering information. With this view I concur and consequently must set aside the con­ viction. It is indeed curious to find that the Legislature has not clothed the administrative officers with proper and sufficient authority to facilitate their duties in this respect and it is a matter for consideration whether it would not be advisable for Government to move for an addition to the law on the lines of section 16 of the Native Tax Ordinance, 1934, of Tanganyika. The papers have been referred to the Attorney-General and I am informed that the Law Officers are unable to sustain this conviction.