092-NLR-NLR-V-07-THE-KING-v.-MANIKKA-PODI.pdf
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THE KING v. MANTKKA PODI.
D. C., Batticaloa, 2,276.
District Court—Witness—Failure to attend on summons—Power of Court topunish summarily such witness as for contempt of Court—Irregularity.
Per Middleton, J.—It is doubtful whether a District Judge haspower to fine a witness for disobedience to a summons of his Court asfor a contempt of Court; but if he had that power, it was his duty tohave given the witness an opportunity of being heard and to haveformally recorded what the offence was of which he was convicted. .
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N this criminal case one of the witnesses for the accused whowas summoned to give evidence was absent on the day of
trial. The District Judge found the witness- guilty of contemptof Court and fined him Bs. 25.
He appealed.'* •
Wadsworth, for appellant.—The District Judge had' no*power todeal summarily With the witness. Form 7* of the CriminalProcedure Code lays down what should j>e done if the witnesswas absent. A warrant should be issued for his arrest. Thepower of the District Judge* to* punish, for contempt of Court is»limited by section 59 of the Courts Ordinance. Special juris-diction''is given to punish, by the procedure- and with- the- penalties
1S0&May 27.
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1903., in that behalf by law provided, every offenoe committed in the
May. 27. presence of the Court, and all acts declared by any law to bepunishable as contempts of Court. Disobedience to summons isnowhere declared to be contempt of Court, nor is any procedure orpenalty laid down for it. Section 881 says that refusal to producedocuments, refusal to take oath, ]bo answer questions, to signstatements, and insult to Judges are contempt of Court. Section440 says that perjury in open Court is contempt of Court. Dis-obedience to summons is an offence under the Penal Code (section172). The procedure adopted byc the Judge is irregular. Thewitness was punished without being called upon to show cause.He is punished on ex parte statements.
Bdmandthan, S.-G.—Section 59 of the Courts Ordinance con-templates not only offences under the Statute Law, but also underCommon Law. The – power to punish witnesses summarily for. notobeying the Court’s summons is necessary for the support of its.authority, and is possessed by it inherently. This power ofpunishment, if delayed till the witness is prosecuted in the PoliceCourt under section 172, will not help the District Court to carryon the administration of justice in due course. [Middleton, J.—Has not this point been raised before?] Yes. The questionwhether the District Court could summarily punish disobedienceto its lawful orders or process was dealt with, before the CourtsOrdinance came into operation, in the case of the application ofJohn Ferguson for a writ of prohibition against the District Judgeof Colombo.
27th May, 1903. Middleton, J.—
In this case a witness, the. Yanniah of a pattu, was summonedto appear at the District Court and give evidence in a criminalcase oh the 9th February last. On that day he did not appear, anda warrant was issued for his arrest in' default. On the 10th Feb-ruary the Vanniah surrendered himself in Court, and was calledupon to explain what the Additional District Judge called hiscontempt of Court. The Vanniah put*in a statement in writing onthe 3rd March, alleging that he had never been served with asummons owing to his being absent at a place called Porativufroip the,2nd to the 8th February. The District Judge orderedthe Fiscal’s process served to be -examined, and on the 21st- Feb-ruary his evidence, taken in the absence of the Vanniah by someone, was submitted to* the District Judge. Whoever took thatevidence has not much experience* in, examining witnesses, and it• was with much difficulty that I ascertained that it primd facieshows that the process server did serye the summons on t&e 6th
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at Kakschiveddi. It seems to me the District Judge should 1903'have heard this evidence himself and in the presence of the. May 27'Vanniah, who alleges he was at Porativu on the 6th. However, Md>dleto»upon this statement of the process server made to some one elsethe District Judge ordered the Vanniah to pay a fine of Es. 25 forcontempt of Court, apparently in his absence and without theopportunity being given to him to be heard to show cause to theCourt. No order was apparently drawn up, but the fine was paidand creditedtothe revenue on the 4th March. Onthatday
there is a note onthe recordof the restrictJudge to theeffect
that, as the Vanniah persistedin denying thereceipt of thesum-
mons, his petition of the 3rd March, in which he alleges he had notbeen served, was tobe treated as a statementthat he bad “cause
to show,” and the12th Maywas fixed forfurther inquiry. On
the 4th March the Vanniah, by his proctor, filed a petition ofappeal against the order to pay Es. 25, and on this fact beingintimated tothe Judge by his secretary, he notedthatthe
appeal was premature, and in consequence a further motion wasmade by the proctor of the Vanniah on the 24th March to forward.the motion of appeal to the Supreme Court. This motion wasdisallowed by.theJudge on the 25th, and it was only ona motion
made to meinthe Supreme Court on the 7th Maythatthe
record is furnished to the Supreme Court together with a letterfrom .the Judge purporting to explain the circumstances of the case.
Assuming the District Judge had power to fine a witness formere disobedience to a summons of his Court on the ground thatit was a contempt of Court (see section 59 of the Courts Ordi-nance of 1889), which I am somewhat inclined to doubt, it is clearthat here the accused has had no opportunity of being heard, and .that he was, as a matter of fact, condemned behind his back.
There is also only the evidence of the process server, upon whoseunsatisfactory testimony it was assumed that the summons hadbeen served. Again, there is no formal record drawn up to showwhat was the offence of which the accused has been convicted,and under or by virtue of what law or authority he was convicted.
The Judge says that the appeal was premature, inasmuch as hehad vacated his order. The fact remains, however, that it isrecorded that the fine was paid ip to the Treasury, but there is norecord to show that it was ever paid out again. In my opinionthe proceedings were irregular in law, procedure, and form, andhaving read what the district Judge has to say and acting in re-vision, I order that the order fining the Witness Es. 25 for con-tempt of Court be se‘t on oqe ride and that the fine be returnedto him.