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Present; Bertram C.J.
SILVA v. GABOLIS.
729—P. C. (Itg.) Colombo, 13,711.
Contemptof Court—Witness in a stateof intoxication inCourt—Jurisdic-tion of PoliceCourt to dealsummarily withthecontempt—Courts
Ordinance,ss.51and 59—CriminalProcedure Code,s. 440—
Civil Procedure Code, part IX.
Toa witness to come before theCourt in a' stateofintoxication
and to giveevidencebefore the Courtis an act ofcontempt of
Courtcommitted in the face of theCourt. Section 59ofthe Courts
Ordinance does not enable aPolice Magistratetodeal summarily
with the case of acontempt of thiskind committed in theface of a Police
The Magistrateshould reportthe matter totheSupreme Court,
for the SupremeCourt to deal withit under section51 of the
Courts Ordinance (No. 1 of 1889).
Part IX of the Civil Procedure Code applies only to Civil Courts.
Section 440oftheCriminal Procedure Code cannotbe applied
for dealing with the foolish and incoherent utterancesofa drunken
E facts appear sufficiently from the judgment.
Bawa, K.C. (with him F. de Zoysa), for the appellant.
September 13, 1918. Bebtbam C.J.—
This is a case in which a Police Magistrate appears to have beenplaced. in an extremely difficult position. A witness, an ExciseInspector, appeared before him, and if we accept as correct theminute made by the learned Police Magistrate, this witness was in astate of gross intoxication, so much so that it was quite impossiblefor the Magistrate to proceed with the case. He was compelled toacquit and discharge the accused, and he then proceeded to deal with■ the witness.
It is not necessary for me to decide this question now. AnythingI may say on the subject is necessarily obiter. But it appears tome that for a witness to come before the Court in a state of intoxica-tion and to give evidence before the Court is an act of contemptcommitted in the face of the Court. It is particularly a case ofoutrageous and gross contempt when that witness is a public officerresponsible for proceedings against a member of the public. Thequestion then arose in what manner the Magistrate should deal withthe case. It is probable that he appreciated the difficulty of dealingwith it under section 59 of the Courts Ordinance. That enactmentcontemplates Police Courts dealing with contempts committed in33
( 446 )
the presence of the Court itself, because it refers to the power of thePolice Court for that purpose in express terms. But the legislatorappears to have been mistaken in assuming that certain penaltieawere by law provided for such a contempt, because it is only in casesin which penalties in that behalf are by law provided that a PoliceCourt has jurisdiction to take cognizance of and to punish the offence.Further, it is only in cases in which a special procedure is providedby law that this course can be taken.
Now, the only penalties and the only procedure provided for bylaw in respect of contempts of Courts before the Courts, other thanthe Supreme Court, are to be found in part IX. of the Civil Proce-dure Code. .My own opinion is that the terms of that chapter, andthe expressions used in the title and introductory provisions of theCivil Procedure Code, clearly show that that chapter only appliesto Civil Courts. The only course, therefore, for a Magistrate whowishes to deal with a contempt of Court committed in the face of theCourt, is to report the matter to the Supreme Court, to enable thecase to be disposed of under section 51 of the Courts Ordinance.This is an extremely unsatisfactory position, because it is theessence of contempt of Courts, particularly in cases where thecontempt is committed in the face of the Court, that the procedureshould be what is described as brevi manu. Doubtless, feeling thedifficulty of dealing with the matter under section 59 of the CourtsOrdinance, the Magistrate attempted to deal with it under section440 of the Criminal Procedure Code.
That section is intended to enable the Court to deal with grossand deliberate perjury by a summary procedure. I do not think thatin any case it was the intention of that section that the Magistrateunder that section should deal with the foolish and incoherent utter-ances of a drunken man. In any case the Magistrate appearshardly to have prepared his charge properly for that purpose. Acharge under section 440 should state that the witness gave falseevidence, and should specify or indicate the words which were allegedto be false. The Magistrate has, however, not taken this course inthis case, and, further, he has taken a course which would be calcu-lated to be embarrassing to an accused person, even if he was not toointoxicated to understand the proceedings. He has, in fact, combinedtwo distinct charges. Hie called upon the witness to show cause whyhe should not be punished under section 59 of Ordinance No. 1 of1889 and section 440 of the Criminal Procedure Code for a contemptof Court, in that he appeared before the Court in a state of intoxi-cation, and while in that state gave false evidence. Be was quitecorrect in the charge under section 440 in embodying a reference tocontempt of Court, and it would have been sufficient if he had stated" for a contempt of Court in that he gave false evidence. M But thecircumstance that he gave the false evidence while he was in a stateof intoxication is irrelevant to this charge. That circumstance
would be only relevant to the charge under section 59. I feel, there-fore, that it would not be right, in all the circumstances, to say thatthese are irregularities which did not cause a failure of justice, andI must come to the conclusion that the effort of the Magistrate todeal with the matter under section 440 is not successful.
The case is one which may properly be brought before this Court,at is is a matter which is specially within its jurisdiction. Thequestion will no doubt be more fully argued when it comes beforethis Court, whether it is a contempt of Court for a witness to appearbefore a Court and give evidence in a state of intoxication. I leavethat question open for the present. I set aside the conviction, anddirect that the Police Magistrate take the necessary steps to bringthe matter before this Court for hearing.
SILVA v. CAROLIS