MAARTENSZ A.J.—Banda v. Gomis Appu.
1933Present: Maartensz A.J.
BANDA v. GOMIS APPU.
156—P. C. Nuwara Eliya, 6,253.
Fiscal's officer—Executing warrant of arrest—Warrant not in terms of form.
No. 60—Defect in warrant no defence to obstruction.
A warrant for the arrest of a judgment-debtor is not illegal merelybecause it does not follow exactly the terms of the form provided in theschedule to the Civil Procedure Code, so long as it embodies the necessaryaverments. A defect in the warrant is no defence to a charge of obstruc-
, tion unless the obstruction followed an offer to pay the amount and theFiscal’s officer was, owing to the defect in the warrant, unable to statethe amount.
PPEAL from a conviction by the Police Magistrate of Nuwara Eliya.
H. V. Perera. for accused-appellant.
L. A. Rajapakse (with him J. R. Jayewardena), for complainantrespondent.
Cur. adv. vult.
August 31, 1933. Maartensz A.J.—
The first accused appellant in this case appeals from a conviction undersection 183 of the Penal Code for having obstructed a Fiscal’s officernamed D. R. P. Banda in the discharge of his public duties.
MAAKTENSZ A.J.—Banda v. Gomis Appu.
The officer was entrusted with the execution of a warrant of arrestissued by the District Court of Colombo in case No. 31,781 against onePiyadasa, who was, at the time the offence was committed, an employeeof the first accused.
The case for the prosecution, shortly stated, was that the appellantintervened when Piyadasa, was arrested, threatened and pushed theFiscal's officer Banda, and would not allow him to remove hisprisoner.
The learned Magistrate has held on the evidence that there could be nodoubt that the first accused did obstruct the peons when they attempted toremove Piyadasa. But he has not stated the facts on which he came tothat conclusion, and it was urged in appeal that the evidence, exceptD. E. P. Banda's evidence that the first accused pushed him, did notestablish more than that there was a verbal objection by the first accusedto the removal of Piyadasa.
As regards Banda's evidence that the first accused pushed him, it waspointed out that the Magistrate relied mainly on the evidence of ConstableMarikar who had not come on the scene when the first accused is allegedto have pushed Banda.
I have read the evidence and judgment carefully and I am of opinionthat the Magistrate accepted Banda's evidence that the first accusedpushed him because he made a complaint to that effect to ConstableMarikar as soon as he arrived.
I am therefore of opinion that this is not a case in which I can interferewith the finding of fact of the Magistrate.
It was, however, contended that the appellant could not be convictedof obstruction as the warrant of arrest sought to be executed was not inthe form No. 60 entitled “ Form of warrant for arrest of a judgmentdebtor ” in the second schedule to the Code, and particularly because it didnot specify the amount due from Piyadasa on account of costs andinterest.
Now some sections of the Code, as for example sections 320 and 323,which provide for the issue of writs to execute decrees for the deliveryof movable property or for the possession of immovable propertyrespectively, require that the process bei in the prescribed form, B 4, butneither section 298 of. the Code which provides for the issue of a warrantof arrest nor section 305 to which form 60 refers requires that the warrantof arrest should be in form 60.
Form 60 is therefore only a model, and a warrant of arrest is not illegalmerely because it does not exactly follow the terms of the form, so longas it embodies the necessary averments.
Section 305 enacts that—
“ Every warrant for the arrest of the judgment-debtor shall directthe officer entrusted with the execution to bring him before the courtwith all convenient speed, unless the amount which he has been orderedto pay, together with the interest thereon and the costs, if any, to whichhe is liable be sooner paid.
MAARTENSZ A.J.—Banda v. Gomis Appu.
“Upon the judgment-debtor being brought before the court undersuch warrant of arrest, if he pays the amount of the decree and the costsof arrest into court, or if he gives security for the payment of the sameto the satisfaction of the judgment-creditor, ot* if he satisfies the court'as is next hereinafter provided, either that he has no seizable propertyor that he is ready and willing to point out all such saleable propertyas he possesses for sale in satisfaction of the decree against him,then the court shall release him from arrest; otherwise, the courtshall commit him to jail in execution of the decree by warrant in theform No. 61 in the second schedule hereto annexed, or to thelike effect
And the particular objection to the warrant was that it does not specifythe interest and costs due from the judgment-debtor on payment of whichwith the amount decreed the judgment-debtor could claim to be released.Form 60 provides for a statement of the amounts due under each head,namely, principal, interest, costs and execution. The warrant producedin this case clearly does not comply with this provision.
For the respondent it was argued that only the amount due on thedecree need be mentioned, as under the second proviso to section 298 thejudgment-debtor was entitled to be released on payment of the decree ororder in execution of which he was arrested. In support of this argumentI was referred to the case of Ran Manika v. Dingiri Banda' where it washeld that an order for the payment of costs is not a decree as defined bythe Code except when it was an order for costs only, or an order for costsmade upon the dismissal of an action for want of jurisdiction.
I do not think it necessary to decide whether the warrant of arrestshould specify the amount due on account of interest and costs as wellas the amount due on the decree, or only the amount due on the decree;for the obstruction was a purely wanton act irrespective of any defectin the warrant,
The warrant was ex fade authority to the Fiscal’s officer to arrestPiyadasa and he was entitled to arrest him, and, in the absence of anoffer to pay the amount due, to bring him before the Court which issuedthe warrant.
The learned Magistrate has held that “ no offer of any sort ” was madefrom the time of his (Piyadasa’s) arrest till he was sent to Colombo. Andthe first accused is therefore not entitled in my opinion to plead the defectif any in the warrant of arrest as a defence to the charge ofobstruction.
It might have been different if the obstruction followed an offer to paythe amount due and the Fiscal’s officer was, owing to the defect in thewarrant, unable to say how much should be paid.
I affirm the conviction and dismiss the appeal.
» 25 .V. L. R. m.
BANDA v. GOMIS APPU