MACDONELL C.J.—Badoordccn v. Dingiri Banda.
1931Present: Macdonell C.J,
BADOORDEEN v. DINGIRI BANDA
690—P. C. GampoJa, 24,502.
Civil warrant—Issued under section 219 of Civil Procedure Code—Execution-Process-server'smistaken belief ofrights—Penal Code, ss. 71and 72.
Awarrant ofarrant uiulcr section219 of the Civil ProcedureCode is a
process issued in civil proceedings and may be executed between thehours of sunrise ami nunset only. A process-server who executes sucha warrant in good faithaftersunset is notprotectedin law.
^^PPEAL from a conviction by the Police Magistrate of Gampola.
The accused was charged with wrongfully confining the complainantunder section 333 of the Penal Code, and sentenced to pay a fine ofRs. 10. It would appearthatthe accused,who wasa process-server,
arrested the complainant at 8p.m. on anattachment issued under
section 219 of the Civil Procedure Code.
Rajapakse, for accused,appellant.—Undersection219 warrant of
arrest may be issued even ex mero motu, section 219 (2). The assumptionis the commission of a contempt of Court. The words of the warrantare'*to arrest…. thathe may undergo thepenalties
.. . for such contempt”; similar to words in Form39 under
section 137. See also sections 717 and 718.
Civil Courts have special criminal jurisdiction to punish for contempt.Section 59 of Courts Ordinance. Even otherwise, non-obedience ofCourt’s order renders debtor liable under section 172 of Penal Code. Themistake is as much one of fact as of law, and is no offence undersection 72 of Penal Code..
In any case the offence is technical and accused may be dischargedunder section 325 of Criminal Procedure Code.
H. V. Perera, for complainant, respondent.—The question whether thepenalties attached show whether the contempt is guasi-criminal or civildoes not arise here. This is a process issued in a civil case, andsection 365 specifically says that such processes shall not be executedbetween sunset and sunrise. The mistake is one of law and is notexcusable.
October 28, 1931. Macdonell C.J.—
In this case the accused- was a process-server and in a certain civil casehe had to execute a warrant issued under section 219. The ultimatepenalty for disobedience to the warrant on the part of the person namedtherein would have been to be " arrested During argument I am
10J. N. A 09910 (8/50)
290MACDONBLL C.J.—Badoordeen v. Dingiri Banda.
afraid I rather wasted time in considering what must be regarded as aside issue, namely, whether the contempt itself is or is not a criminalmatter. I have looked up the English authorities on the question and theeffect of them* is that, at any rate as regards English law, contempt is notcriminal unless the act punished per se constitutes a crime. We seemto have very little authority on that point, and, of course, anything I sayin the view I take of it is obiter, but probably that is not a bad rule fordistinguishing between the different kinds of contempt; if that for whichyou are punished as for a contempt constitutes on other grounds a crime,then the contempt is criminal, but not otherwise. But the real pointbefore me was this. Had this process been issued in a civil proceeding?I am perfectly clear that it had. The mere fact that the ultimate sanctionof this process was imprisonment—or even that failure to obey thisprocess entailed the committing of ail offence called contempt, see section137—does not alter the nature of the process which was a process in acivil case. The process was merely an incident in a particular civil caseand must, I think, remain stamped with that character, because withoutthat civil case, the process could never have been issued at all. If itwas so, then this unfortunate man was wrong and broke the law by arrestingthe person under the process entrusted to him at a time in the day aftersunset. If that is so. then it seems to me that the conviction was justified.But it has been argued that, if the accused in good faith was mistakenas to what he could do, he would* be protected and no prosecution couldproperly be brought against him for having arrested the person namedin the process after sunset. I do not think that is the law. Sections 71* and 72 of the Penal Code define. clearly and sufficiently the protectionthrown around the person who exercises the process of law. If a manreceives process from a Court of law, which he honestly believes that thatCourt of law has powfer to issue, and executes the same, then he is protectedin what he does in good faith under that process, even though theCourt 'had not jurisdiction to issue that process. But he must notbe mistaken in what the law allows him to do, and if, as in thiscase, the particular process had by law attached to it the condition thatthe arrest could only lawfully be effected during daylight hours, then theact of the appellant in this case in arresting after daylight hours was amistake in law for which no section in the Penal Code protects him.If
that is so this appeal must be dismissed and the conviction upheld, butI do agree with what the learned Magistrate says, that it is hard luck onthe unfortunate man and that he has apparently been rather maliciouslyharried by the prosecutor who has attributed to him a number of actsin the execution of the warrant which the Magistrate finds he nevercommitted, and that being so the Magistrate imposed a nominal sentenceof a fine of Rs. 10, or in default one week's imprisonment. I have beenasked to deal with the appellant under section 32£>, but I cannot do thatsince he^ has been convicted, and in my opinion quite rightly. I will,however, extend further sympathy to the appellant in the matter ofsentence and accordingly order him to pay a fine of Re. 1, or in defaultone week's simple imprisonment.
BADOORDEEN v. DINGIRI BANDA