084-NLR-NLR-V-19-ALLES-v.-PALANIAPPA-CHETTY.pdf
( 884 )
1917.
[In Revision.]
Present: Shaw J.
ALLES v. PALANIAPPA CHETTY.
P. 0. Colombo, 5,861.
Fugitiveoffender—-Warrantforarrest^—Offence. committedby person
residing out of Ceylon—Revision—Writ of prohibition.
To render a person liable to be apprehended under the FugitiveOffenders Acttheremustbean offencecommittedinBorne part
of His Majesty’s dominions, and subsequent to the offence theoffender must have left that part.
The provisions for apprehension do not apply " to. a person whoin one part of Hie Majesty’s dominions commits an offence in, orabets the commission of an offence in, another part, and who wasnot in that part at the time of the offence, and has not since beenthere. Such apersoncan,ingeneral, beprosecutedfortheoffence
in that part of His Majesty’s dominions in which he waB when hecommitted theoffence,andifit iB moreconvenientthatheshould:
be removed for trialto another part, hecan be soremovednnder*
the provisions of section 85 of the Act.>
The powers of revision given to the Supreme Court by ' sections21 and 40 of the Courts Ordinance are very wide and general;they might be exercised in respect of non-summary proceedings.
r J1HE facts are set out in the judgment.
Bawa, K.C. (with him Tisaeveraainghe), for petitioner.—This isnot a case to which the Fugitive Offenders Act, 44 and 45 Viet.,o. 09, applies- The accueed is not a “ fugitive offender ” within ,the meaning of section 2 of the Act (14 Halsbwry, s. 987, p. 481).
R. v. Nellina 1 is a decision on the Extradition Acts, 83 and84 Viet., o. 52, and 86 and 87"*Viot., o. 60. Section 26 of 38 and84 Viet., c. 52, does not require that the offender should have leftthe jurisdiction within which he committed the offence to becomeamenable to extradition; whereas section 2 of the FugitiveOffenders Act, 44 and 45 Viet., e. 69, makes it a condition precedentto the issue of the warrant for the arrest of the offender.
The application for the warrant is not made bona fide (see section19 of the Fugitive Offenders Act). A number of civil actions arepending against the accused at the instance of the complainant, andin one case judgment had been obtained, and it is now pending inappeal. The accused has denied his liability to pay the severalclaims. The application will cause grave prejudice to his appealand to his defence in the pending oases. This is an attempt with i
i B8 L. J. M. C. 157.
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She indirect object of bringing the accused within the jurisdiction 19171o! the District Court of Colombo so as to make him amenable to AUeav.surest in the civil actions. To obtain a warrant for that purpose Pcdaniappm'is an abuse of the process of the Court. (Pooley v. Witham.1)Chatty.
The warrant has been irregularly issued, as the procedure underthe Act has not been followed. See English Home Office Circulardated February 4, 1882, quoted in Xirchner’s book on “ FugitiveOffenders. ” See also Ceylon Government Gazette SupplementNoi 6,006 dated July 18, 1890, pages 1-16, and also CeylonGovernment Gazette No. 4,830 dated December 16, 1887, page 2922.
[Shaw J.—These are mere instructions, and have not the forceof law.]
They are published for the guidance of Magistrates.
Counsel also referred to Ceylon Ordinance No. 10 of 1877, Ordersin Council published in the Ceylon Government Gazette No. 4,826dated August 12, 1878, page 800, and January 22, 1886, page 108, to*
Julius Kaufmann’s Casto,3 and R. v. Jacobi.s
On the merits counsel contended that no offence had beencommitted.
Morgan de Saram (with him JayatUeke), for respondent.—Anapplication for a writ of prohibition, and not for revision, is the*proper proceeding. The powers of the Supreme Court in revisionare contained in section 356 of the Criminal Procedure Code, and*are limited to cases “ already tried or pending trial, ” and the-present is not one of these cases. This is a non-summary case.
Where prohibition lies, appeal and revision are out of place, and*should not be allowed (see S. C. 69—P. C. Chilaw, 660).4 Thedecision in R. v. Nellins 5 applies to this case. An offence havingbeen committed within the jurisdiction of the Colombo PoliceCourt, the physical presence of the offender there at the timeof the commission of the'offence is not necessary to bring him with-in the provisions of the Fugitive Offenders Act. Besides, the*
-accused has not appeared before the Police Court of Colombo,and it is not, therefore, open to him at this stage to raise anyobjections to the proceeding. He may raise them when he is*,arrested and brought before the Foreign Court.
Counsel argued, on the merits of the case.
Bawa, K.C., in reply.—The Supreme Court has wide powers;under sections 21 and 40 of the Courts Ordinance, 1889, and caninterfere in every case of an improper order being made by an*inferior Court. So held recently in case No. 6,143, P. C. Colombo.8'
Section 366 of the Criminal Procedure Code does not,. and cannot,iimit the powers of the Supreme Court, for section 6 of the same-
1 50 L. J. (N. 8.) Bq. 236.* 8. G. Min., Jan. 26, 1916.
a 2 8. C. C. 184.5 58 L. J. M. C. 157.
a 46 L. T. B. 695.* 8. C. Min., Jan. 23, 191X..
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1917.
,■ i *•-
Alles v.PctianiappaChetty.
Code enacts that “ nothing in this Code shall be considered asderogating from the powers or jurisdiction of the Supreme Coiirtor of the Judges thereof. ”
Besides, section 856 of the Criminal Procedure Code, 1898, i$ are-enactment, almost word to word, of section 753 of the CfivilProcedure Code, 1889, and the words “ whether already tried orpending trial ” cannot, therefore, have the restrictive meaningcontended for by respondent’s counsel.
[Mr. de Saram pointed out that the old Criminal Procedure Code,No.-2 of 1888, had the same words.]
Writ of prohibition does not lie, as the Magistrate has not actedwithout jurisdiction (6,143—P. C. Colombo and In re Villavarayen l).
Accused need not appear in person, and can be represented by apleader (sections 154 and 287 of the Criminal Procedure Code). TheSupreme Court can exercise its powers of revision of its own motion..
Cur. adv. vult.
Februaiy 20, 1917. Shaw J.—
– This is an application for the exercise of the powers of the SupremeCourt in revision in regard to the proceedings in the Police Court ofColombo in this case, and in particular in regard to the issue by theMagistrate of a warrant for the arrest of the petitioner under theFugitive" Offenders Act, 1881.
On November 13, 1916, a complaint was made by Francis JosephAlles, Chief Cashier and Guarantee Shroff of the Chartered Bank,Colombo, • against the petitioner for cheating under section .400 .ofthe Penal Code.
The facts disclosed by the evidence in support of the charge areas follows: —
The petitioner, who resides in India, carried on business there,and in Colombo in partnership with his’ brother, Narayanan Chetty,under the vilasam M. M. P. Xj., the business of the firm in Colombobeing managed by their agent and attorney, Muttiah Chetty, whoheld their power of attorney dated December 16, 1911.
Acting do** 'his power of attorney, Muttiah Chetty from timeto time k'from the Chartered Bank considerable sums of
money on beneit of the firm of M. M.-P. B.
In October, 1915, the petitioner visited Colombo and had aninterview with Mr. Alles. At this time the firm* was indebted tothe bank in the sum of Rs. 39,950 in respect of bills discounted;The petitioner informed Mr. Alles that the firm had a good businessand a lot of property iiflndia, and asked hiip to go on lending themmoney, and said he would guarantee payment.
In December, 1915, after the petitioner had returned to India,his brother Narayanan Chetty died; at this time over Rs. 61,000was owing from the firm to the bank.
» (1908) 7 N. L. B. 116.
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No notice was given by the petitioner or by Muttiah Chetty to the 1M7.bank of the death of Narayanan Chetty, and the bank continued Shaw J.
discounting bills drawn by Muttiah on behalf of the firm up to
September 6, 1918, at which date the amount due to the bank was p^iSSi^aBe. 42,850. The bank then sued the petitioner and Narayanan on Chetty.a promissory note in case No. 45,468 in the District Court, Colombo,and the petitioner set up as a defence that the firm had beendissolved by the death of his brother in Deoember, 1915. Thiswas the first intimation which the bank or Mr. Afies had receivedof his death.
Judgment has been obtained by the bank against the petitionerin that case, and an appeal has been lodged and is pending in thisCourt.
The cheating which is alleged against the petitioner, in theinformation before the Magistrate', is the failure to give notice toMr. AUes or the bank of the death of Narayanan.
Two objections are taken on behalf of the petitioner to thewarrant issued by the 'Magistrate first, that the petitioner havingbeen in India- from the date of the alleged offence up to the presenttime he is not a fugitive within the meaning of the Act; and second,that the evidence before the Magistrate discloses no criminal offence,and the proceedings before the Magistrate and the application forthe warrant are not bona fide, but for tile purpose of attempting. toenforce payment of a civil debt.
I am of opinion that the issue of the warrant was improper on thefirst of these grounds.
There is no definition of “ fugitive ” or “ fugitive offender ” inthe Fugitive Offenders Act, 1881, and the ordinary meaning offugitive offender is, of course, one who, having committed an offencein any place, flies from it to escape the consequences.
Section 2 of the Act specifies who the persons are who are liableto be apprehended under the provisions of the Act, and shows thatthe meaning of the word “ fugitive ” in the Act is intended to bethe normal one. That section is as follows r—
*
“ 2. Where a person accused of having committed an offence(to which this part of the Act applies) has left that part, suchperson (in this Act referred to as a fugitive from that part) iffound in another part of Her Majesty’s dominions shall beliable to be apprehended and returned in manner provided by thisAct to the part from which he is a fugitive. ''
To render a person liable to be apprehended under the Act theremust be an offence committed in some part of His Majesty’sdominions, and subsequent to the offence the offender must haveleft that' part; then if he is found in another part he may be appre-hended and returned to the part from which he is a fugitive.
( 398 )
1917.' The provisions for apprehension seem to me clearly not to apply1"*eaw J. to * person who in one part of Sis Majesty’s dominions commits
an offence in, or abets the commission of an offence , in, another parti,
Pafcmiqppa and who was not in that part at the time of the offence, and has notChatty. since been there. Such a person can, in general, be prosecuted forthe .offence in that part of His Majesty’s dominions in whioh hewas when he committed the offence, and if it is more convenientthat he should be removed for trial to another part, he can be soremoved under the provisions of section 35 of t£e Act.
. On behalf of the respondent the case of R. v. Netting 1 was cited.In that case the accused, while in England, sent letters contain-ing alleged false pretences to persons in Germany, thereby inducingthem to part with goods and deliver them to the order of certainpersons in Germany. It was held by the Court that the accusedwas liable to be extradited'to Germany.
The case, however, appears to me to be no authority in thepresent. The application there was under the Extradition Act,1870, and depended upon the construction of that Act, the wordingof which is entirely different to that of the Fugitive Offenders Act,1881. It contains no provision similar to that contained in section 2of the latter Act, which I have quoted above, and it contains insection 25 a definition of “ fugitive criminal, ” which embraces allpersons who have committed an offence in a foreign state, whetherthey have been in that state or not.
Having come to the conclusion that the first objection to theissue of the warrant is a good one, it is unnecessary for me to discussthe second, and I do not think I should prejudice the decision ofany further proceedings that may be taken by an expression of •opinion with regard to it.
Objection was taken on behalf of the respondent to the presentpetition that proceedings for revision are inapplicable, and that theproper course for the petitioner to have taken was to have appliedfor a writ of prohibition against the Magistrate,
The powers of revision given to the Supreme Court by sectiqns 21and 40 of the Courts Ordinance are very wide and general, and ina very recent case, No. 6,143, P. C. Colombo,2 the Chief Justiceexpressed his opinion that in a proper case they might be exercisedin respect of non-summary proceedings. I do hot think that section356 of the Criminal Procedure Code was intended to or does restrictthe general powers given by the Courts Ordinance to revise in aproper case any order made by an inferior Court in any proceedingsof a criminal nature, whether the actual trial may or may not ulti-mately be before the Court, the order of which it is sought to revise.
. That an application by way of revision will not generally beentertained when proceedings by way of appear lie is well established,and it was contended that, as an application for a writ of prohibition'1 53 L. J. M. C. 157.2 S. C. Min., Jan. 28, 1917.
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-might have been made in the present case, revision should be 19i7»refused. In this connection I was referred to No. 660, P. C. Chil&w.1 Shaw J.That oase, however, was not an application for revision but anappeal, the contention being that the Magistrate had acted pakmiappaentirely without jurisdiction, and. 1 expressed an opinion that the Chetty,proper remedy was to have applied for a writ of prohibition.
That case appears to me to have, no bearing upon the present.
Whether proceedings' for prohibition would Be in the present easent all is not very 'clear, the Magistrate having jurisdiction in a propercase to issue a warrant under the Act; but whether such proceedingslie or not, I think the Supreme Court has also 'jurisdiction underits powers of revision to rectify the order that has been made,
•And that this is. a proper case for the exercise of the jurisdiction.
I accordingly direct that the order for the issue of the warrantunder the Fugitive Offenders .Act, 1881, for the arrest of the petitionerbe set aside.
Set aside.