v.OFFICER-IN-CHARGE, KAHAWATTA POLICE
COURT OF APPEAL.
ABEYWARDENA. J. AND P. R. P. PERERA, J.
M.C. PELMADULLA 40863.
JULY 16 AND 17. 1986.
Contempt of court-S. 388 of Code of Criminal Procedure Act-Charge-Necessity toinform accused of charge.
No person should be punished for contempt of court which is a criminal offence unlessthe specific offence charged against him be distinctly stated and an opportunity ofanswering it given to him. A formal charge is not necessary but he must be told of thematter.
Cases referred to:
Mohotta v. Pula-11878) 2 SCC 8.
In re Pollard-(1868) 16 ER 47; 5 Moore N.S. III.
Daniel Appuhamy v. The Queen-(1962) 64 NLP 481. 484 (P.C.).
Senanayake v. Kirihamy et al-2 CWR 65.
Rex v. Amadoru—(1911) 14NLR481.
Cheng Hang Kui v. Pigott-1909 AC 312.
APPEAL from conviction by the Magistrate of Pelmadulla.
L. H. Arulanandan, S.C. for the Attorney-General.
Accused-appellant absent and unrepresented.
Cur. adv. vult.
August 28. 1986.
The Kahawatta Police filed a report in the Magistrate's Court ofPelmadulla, on 10.9.1983, seeking an order under section 81 of theCode of Criminal Procedure Act, directing certain persons to execute abond to keep the peace. The learned Magistrate issued notice on theparties on this date returnable on 3.10.1983. On 3.10.1983 theMagistrate re-issued notice returnable on 24.10.1983. On24.10.1983, the parties were present, and the learned magistrateordered the parties to show cause, if any on 14.1.1984, against themaking of such order.
The journal entry dated 24.10.1983, bears out that the 2ndrespondent M. E. D. Perera who was present in court when this casewas called, addressed the court in a threatening manner and askedthat he be given a date. The magistrate observes that his conduct wasin contempt of the court, as he made certain utterances in a loud tonein an agitated manner. The magistrate has fined the suspect a sum ofRs. 200 for contempt of court, purporting to act under section 388 ofthe Code of Criminal Procedure Act. The suspect has been directed toshow cause against the application for an order under section 81 on16.1.1984. He has also been ordered to pay the fine imposed undersection 388 on the same date. This appeal is against the order of themagistrate made under section 388 of the Code of Criminal ProcedureAct.
The proceedings of 24.10.1983 referred to in the journal entry setout above contains the observations of the learned magistrate. In briefthe magistrate states that she has imposed a fine of Rs. 200 undersection 388 of the Code of Criminal Procedure Act against theappellant, in view of the latter's conduct which was in contempt of thecourt. The magistrate observes that the appellant conducted himselfin this manner in the presence of other members of the public presentin court. The appellant had been informed through the interpreter thathe should be respectful when he addressed court. As the appellanthad persisted in conduct that was disrespectful to the court, themagistrate had, at one stage ordered court officials to remove himfrom the court. The Magistrate states that the words uttered and theconduct of the appellant was in contempt of court as they were of anature which tended to bring the court into disrepute and ridicule. Inthe circumstances the Magistrate has purported to deal with theappellant under the provisions of section 388 of the Code of CriminalProcedure Act No. 15 of 1979.
Before considering the question whether the conduct of theappellant in fact constituted contempt of court, it is necessary for thiscourt to consider whether the learned Magistrate had adopted thecorrect procedure before sentencing him under section 388 of theCriminal Procedure Code. Interpreting section 381 of the old CriminalProcedure Code, (section 388 of the present Code), the SupremeCourt in Mahotta v. Pula (1) observed thus:
"It may be useful here to remark that the Privy Council not longago In Re Pollard (2) affirmed the elementary and well establishedprinciple that 'no person would be punished for contempt of courtwhich is a criminal offence, unless the specific offence chargedagainst him be distinctly stated and an opportunity of answering itgiven to him'."
This case has been quoted with approval in Daniel Appuhamy v. TheQueen (3). It is clear from the decision in Daniel Appuhamy v. TheQueen (supra) (3) that a formal charge is not necessary but thesuspect must specifically be told of the matter on which he is to bepunished.
I find further support for this proposition in Senanayake v. Kirihamyeta! (4).
I am conscious of the fact that in section 388, the present Code ofCriminal Procedure Code Act has omitted the provisions of section381 (2) (of the former Criminal Procedure Code), which provided thus:
"In every such case the court shall record in the proceedings thefacts constituting the offence, with the statement (if any) made byoffender as well as the finding and sentence and shall forthwithtransmit a copy of such record to the Supreme Court so that theSupreme Court may, if it thinks fit. exercise its power of revision".
The absence of provision to this effect in the present Act howeverdoes not in my view dispense with the requirement to afford the 'offender an opportunity to show cause when the court purports todeal with him under section 388.
It may also be relevant in this instance to consider the observationsof the Supreme Court in Rex v. Amadoru (5) where the Supreme Courtexamined the procedure, a court should adopt in dealing with a personunder section 440 of the Criminal Procedure Code (section 449 of thepresent Act), which is also a provision which empowers a court to dealwith an offender summarily for perjury in open court. This section inmy view vests an original court with a jurisdiction which is similar tothat which is envisaged in section 388 of the Criminal ProcedureCode. In Rex v. Amadoru (supra) (5), Woodrenton, J. stated thus:
"I have thought it right to say a few words as to the decision of thePrivy Council (in Cheng Hang Kui v. Pigott (6))… .because it givesme another opportunity of insisting, on the authority of the PrivyCouncil itself on the paramount importance of courts of firstinstance seeing that no man is convicted under such statutoryprovisions, like section 440 (section 449 of the present Code), tillhe has had some opportunity of defending himself'.
It seems to be settled law that a suspect charged with contemptmust be given an opportunity to show cause. I have perused theproceedings in this case but find that the learned Magistrate in thiscase has failed to inform the appellant of the specific offence chargedagainst him and has deprived the appellant of an opportunity ofanswering it.
In the circumstances I am of the view that it is desirable to remit thiscase for a fresh trial, in accordance with the proper procedure. Itherefore set aside the conviction and sentence imposed in this caseand acquit the accused-appellant and remit this case to theMagistrate's Court of Pelmadulla for a re-trial in accordance with theproper procedure.
ABEYWARDENA, J.-l agree.
Conviction set aside and case sent back for re-trial.
GUNAWARDENA v. OFFICER-IN-CHARGE, KAHAWATTA POLICE