Leelasena v. Nadarajah
Present: T. S. Fernando, J.H. LEELASENA, Appellant, and S. M. NADARAJAH(Chairman, Urban Council, Bandarawela), Respondent
8. G. 900—M. G. Badulla-Haldumulla,- 21,813.
Sentence—Continuing offence—Procedure for imposition of sentence—Requirement ofseparate charge and trial—Criminal Procedure Code, ss. 187, 425—UrbanCouncils Ordinance, No. 61 of 1939, ss. 166, 167, 229.
Where an enactment such as by-law 22 passed under section 166 of the UrbanCouncils Ordinance No. 61 of 1939 provides for the imposition of an additionalfine for every day during which the contravention of it is continued aftera conviction, the fine for the continuance of the offence cannot be lawfullyimposed unless the continuing contravention is duly proved after a charge isframed or read out under section 187 of the Criminal Procedure Code and theother provisions of the Code relevant to the trial of a summary offence arecomplied with.
JTA.PPEAL from an order of the Magistrate’s Court, Badulla-Haldumulla.
P. J. Kurukulasuriya, with M. M. Kumarakulasingham and
Walter Jayawardene, for the accused-appellant.
K.G. Nadarajah, for the complainant-respondent.
Gur. ado. vult.
254T. S. FERNANDO, J.—Leelasena v. Nadarajah
December 20,1956. T. S. Fernando, J.-
On 11th January 1956 the accused-appellant in this case was chargedin the Magistrate’s Court with using and occupying on 1st January 1956a stall in the Bandarawela public market, without being the holder or theservant or agent of the holder of a licence issued by the Chairman of theUrban Council, in contravention of by-law 3 of the by-laws relating toMarkets made by the Bandarawela Urban Council and published inGazette 8,806 of 31.10.1941, thereby committing an offence punishableunder by-law 22 cf the said by-laws. The accused was convicted ofthe said offence on 15th February, 1956, and sentenced to pay a fine ofRs. 50. He appealed to this Court, but his appeal was dismissed on11th May 1956.
After the record was returned to the Magistrate’s Court, the proctorfor the complainant, the Chairman of the Urban Council, filed a motionin court on 15th June 1956 and moved that the accused be noticed toshow cause why a continuing fine in terms of by-law 22 of the aforesaidby-laws should not be imposed on him. Thereafter on a date fixed forinquiry, the Chairman testified in the presence of the accused that thelatter was continuing since the date of the conviction to occupy the stallwithout the authority of a licence notwithstanding the conviction.The accused neither gave nor called any evidence, and the learned Magis-trate, after hearing counsel on his behalf, made order on 14th August 1956imposing a fine of Rs. 25 per day as from 15th February 1956 till theaccused vacates or is ejected from the stall.
The present appeal is from this order of 14th August 1956 and it raisesthe interesting question of the appropriate procedure to be followedwhere a person continues after a conviction the act that constitutedthe contravention of the law which was the subject of that conviction.Learned counsel for the appellant submits that the proceedings takenin the Magistrate’s court of noticing the accused following upon a motionof the original complainant and holding an inquiry thereafter are notrecognised and warranted by law and that the correct procedure to havefollowed would have been the institution of fresh proceedings in respectof the continuing contravention in the manner indicated in the CriminalProcedure Code. On the institution of proceedings in that mannerthe Court will observe the same procedure as in the case of any othersummary trial. He submits that, apart from any other defect in theprocedure followed, the failure to frame a charge is fatal to the legalityof the continuing fine imposed on the appellant in this case. I am ofopinion that the contention of counsel is sound and that the procedurefollowed in this case is not warranted by law.
It was contended in the Magistrate’s Court that the application forthe imposition of a continuing fine should have been made in the Magis-trate’s court at the time of the original conviction or, at any rate, in theSupreme Court at the time the appeal was argued. This contention wasrightly rejected by the learned Magistrate. Reference might be madein this connection to the judgment of Schneider A.J., in the case oiPunchihewa v. Nicholas Appuhamy1 in which the validity of an order
‘ (1920) 8 C. W. Jt. 247.
T. S. FERNANDO, J.—Ledasena v. Nadarajah
made by a Magistrate imposing a continuing fine at the time of convictinga person for an offence under section 13 of the Housing and Town Improve-ment Ordinance, No. 19 of 1915, came up for consideration in the SupremeCourt. The relevant words appearing in the said section 13 are “ shallbe liable on summary conviction to a fine not exceeding three hundredrupees, and to a daily fine of twenty five rupees for every day on which theoffence is continued after conviction”. It may be noted that there isa difference between section 13 of the Housing and Town ImprovementOrdinance and the by-law we are concerned with in the present appeal inthat the latter provides for the imposition of a continuing fine not onlywhere a contravention is continued after a conviction but also afterservice of a written notice from the Chairman or an officer authorised bythe Chairman directing attention to such contravention. As no question,however, arises in this case of the service of such a written notice by theChairman or an officer authorised by him, the case is not distinguishablefrom Punchihewa v. Nicholas Appuhcmy (supra) on the point that thecontinuance of the contravention was itself an offence. Schneider A.J.,in dealing with the point, stated that “ the fine for the offence of notbringing the building into conformity with the approved plan after theconviction cannot be imposed until it has been proved to the satisfactionof the court that the accused failed after the conviction to bring thebuilding into conformity with the approved plan. The offence can onlybe committed after the conviction, and any conviction in respect ofthat offence would be illegal until there is proof before the court ofthe commission of the offence ”. It is possible that the prosecutionhad this decision in mindwhenitrefrained from applying for the imposi-tion of a continuing fine at the time a conviction was entered againstthe accused on 15th February 1956. Schneider A.J. did not haveoccasion to state in the ease referred to above what procedure was properin the case of a prosecution in respect of a continuing contraventionexcept to indicate that the failure to bring the building into conformitywith the approved plan after the conviction was itself an offence.The question therefore remains whether the procedure actually adoptedby the prosecution in invoking the aid of the court by motion to obtainan order for a continuing fine has any legal sanction.
By-law 22 of the by-laws in question is in the following terms:—
“ Every contravention of any of these by-laws shall be punishablewith a fine not exceeding fifty rupees, and, in the case of a continuingcontravention, with an additional fine not exceeding twenty fiverupees for every day during which the contravention is continuedafter a conviction thereof by a court of competent jurisdiction or afterservice of a written notice from the Chairman or an officer authorised
by the Chairman directing attention to such contravention. ”
These by -laws have been made under the power conferred on the UrbanCouncil by section 166 of the Urban Councils Ordinance, No. 61 of 1939.Section 167 of the same Ordinance enacts that every contravention of theby-laws shall be an offence under the Ordinance, and section 229 providesthat every such offence shall be triable summarily by a Magistrate.
Sri Pannaloka Thero v. Jinorasa Thero
If every contravention of by-law 3 is an offence, then a continuing contra-vention is also an offence. Before any sentence can lawfully be imposedin respect of that offence there was a requirement that the offence betried. The Magistrate was therefore required, inter alia, to comply withthe provisions of section 187 of the Criminal Procedure Code in respect offraming or reading out of a charge. There was a failure in this case toframe any charge at all and to observe the other provisions of the Coderelevant to the trial of a summary offence, and I am of opinion that thesteps taken in the Magistrate’s court on and after 6th July 1956 whenthe accused appeared in response to the notice served on him are withoutauthority and cannot support the order appealed against.
Learned counsel for the respondent argued that there has only beena procedural irregularity and that such irregularity has not occasioneda failure of justice. He submitted that section 425 of the CriminalProcedure Code be utilised to maintain the order of the learned Magistrate.It is not possible to accede to this argument in view of tho decision ofa Divisional Bench of this Court in Ebert v. Perera1 which held that theomission to frame a charge is not an irregularity which is covered by thesaid section 425. I therefore set aside the order imposing a fine of Rs. 25a day as from 15th February 1956.
H. LEELASENA, Appellant, and S. M. NADARAJAH (Chairman, Urban Council, Bandara