Rex v Rawebhai (Cr. App. 26/1931.) [1931] EACA 23 (1 January 1931)

# APPELLATE. CRIMINAL.

### Before SIR JACOB BARTH, C. J. and DICKINSON, J.

### REX (Respondent) (Original Prosecutor)

#### $\boldsymbol{\eta}$

# SANTOKBHAI RAWEBHAI

## (Appellant) (Original Accused).

# Cr. App. 26/1931.

- Perjury—section 98 Penal Code; False Swearing—section 101 Penal Code; Discharge of accused person when no case to answer-section 196a Criminal Procedure Code. - **Held** (24-7-31):—That sections 97 and 98 appear to be devised to deal<br>with perjury committed in judicial proceedings, and section 101<br>seems devised for other matters such as declarations and affirma-<br>tions required by sta

Also held that no authority has been deduced enabling the<br>Crown to call further evidence in support of its case after the<br>accused has in fact entered on his defence.

### Shapley for Appellant.

## Abbott, Crown Counsel, for Crown.

An information was filed in the lower Court (Resident Magistrate, Nairobi, Criminal Case 2800/1931) charging the accused under section 101 of the Penal Code with having committed the offence of perjury in that he swore an affidavit which he knew to be false. In that affidavit, sworn on 22nd August, 1930, accused stated, inter alia, that since the making of a Receiving Order against the estate of a firm known as Maragua Stores, of which he was a partner, he and his firm. had made a settlement with all their creditors in full satisfaction of their debts. The affidavit was used in support of an application to the Supreme Court for recision of the Receiving Order. Evidence was led that one particular creditor had not in fact agreed to any composition or settlement. The Magistrate found accused guilty under section 101 read with section 34 of the Penal Code, but in doing so expressed the opinion that the accused could have been charged with the more serious offence He sentenced the accused to one year's under section 98. imprisonment with hard labour.

The principal ground of appeal was that the Magistrate erred in holding that section 99 of the Penal Code had no application to section 101 thereof.

Shapley.—The appellant is illiterate as far as English is concerned although he can sign his name, and there is no evidence that the affidavit referred to was read over. Refers to sections

80 and 85 Criminal Procedure Code. After prosecution's case had been closed accused should have been acquitted, but Magistrate allowed further evidence to be called. There is no provision which permits further evidence to be lead for prosecution after case has been closed. The case was in fact one under section 99 of the Penal Code. $Quoted :=$

Russell on Crimes, 8th Ed., pp. 479, 491, 492.

Rex v. Hailey, Ry. & Moody, p. 94.

Abbott.—Administration of justice is a public concern and brings this case within section 101 of the Penal Code. There is no evidence of illiteracy. Quoted Archbold 1922, 26th Ed., p. 1198. As regards sentence this was lenient in all the circumstances.

Shapley in reply.-No authority has been produced for reopening case after prosecution has indicated closure. The matter is not one of sufficient public concern to bring it within section Quoted Regina v. Parker, Cr. & M., p. 639. 101.

The judgment of the Court was delivered by Sir J. W. Barth, Chief Justice.

JUDGMENT.—The appellant is seeking to reverse a conviction and sentence under section 101 P. C.

The history of the case is that the appellant filed a petition in bankruptcy on which a receiving order was made on 27th June, 1930. On 5th September, 1930, an application was made to the Court supported by an affidavit (Exhibit 1 in the trial Magistrate's record), for the receiving order to be rescinded on the ground set out in the affidavit that the appellant had settled with all his creditors in full satisfaction of their debts. The signature on this affidavit is no doubt that of the same person who signed the petition in bankruptcy, i.e. the appellant. Exhibit 1 is the foundation of the proceedings against the appellant, it being alleged that the statement therein that he had settled with all his creditors is false.

At the trial it was proved that Exhibit 1 had been sworn before a Commissioner of Oaths who gave evidence but could not, however, identify the accused as the deponent.

Mr. Morrison, an accountant for Messrs. Gailey and Roberts, who had not met the accused before, gave evidence of the receipt of Exhibit 2 which was signed by the appellant and stated that all his creditors were agreed to accept 30 per cent in settlement He also proved Exhibits 3 and 4 which were of their claims. sent by him.

The signature of the appellant on Exhibit (6)—the petition in bankruptcy-was proved by Chaganlal P. Jikar, Mr. Malik's clerk. A copy of the order rescinding the receiving order was put in and the case for the Crown was closed.

Mr. Modera for the appellant then submitted that there being only one witness as to the falsity of the statement in the affidavit there was no case to answer, vide section 99 P. C. This submission was upheld by the learned Magistrate. $Mr.$ Abbott for the Crown then asked leave to call a second witness.

On the footing that it was competent for the Crown to withdraw the case and institute fresh proceedings the learned Magistrate held that it was reasonable to allow an additional witness to be called, alleging that no hardship to the appellant would be caused by such procedure. Mr. Malcomson was then called; this witness testified to the fact that no composition with the appellant's firm had been agreed by Messrs. Gailey and Roberts, and that the witnesses' firm had emphatically refused any such composition.

In my judgment the proceedings should have been under section 98 P. C. There can be no doubt that the affidavit was made for the purpose of a judicial proceeding, and the question whether or not it came within the definition of perjury in section 97 P. C. would have been one for the Court.

It has been argued for the Crown that the administration of justice is a public concern and that the facts of this case are a matter of public concern, and that therefore the proceedings were rightly had under section 101 P. C. There is no doubt that the administration of justice is of the greatest public concern, but sections 97 and 98 appear to be devised to deal with perjury committed in judicial proceedings, and section 101 seems devised for other matters such as declarations and affirmations required by Statute. The terms of the section make it clear that it is applicable to false swearing other than in judicial proceedings.

In my view therefore the charge of perjury should have been supported by more than one witness, vide section 99 P. C. The prosecution was closed and no authority has been adduced enabling the Crown to call further evidence in support of its case after the accused has in fact entered on his defence. In accordance with section 196a, Criminal Procedure Code, the appellant. should have been discharged. Because the Crown could have entered a nolle prosequi or withdrawn the case appears to me to be no reason why the usual procedure should be departed from. The case for the Crown should be presented in as complete a form as possible without resorting to devices to enable further evidence to be called.

The conviction and sentence are reversed, and the appellant is ordered to be discharged.

DICKINSON, J., concurred.