013-SLLR-SLLR-1984-2-CHANDRADASA-NANAYAKKARA-v.-LIYANAGE-CYRIL.pdf
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Jayanetti v. The Land Reform Commission (Wanasundera, J )
193
CHANDRADASA NANAYAKKARA
v.UYANAGE CYRIL
COURT OF APPEAL.
ATUKORALE. J. (PRESIDENT). TAMBIAH. J. AND L. H. DE ALWIS, J.
C.A. APPLICATION No. CA/APN/GEN/10/84.
JUNE 26. 1984.
Contempt of Court – Article 105 (3) of the Constitution.
The Magistrate of Kandv had found the respondent's wife guilty of the unlawfulpossession of 1123 grains of ganja. an offence publishable under the Poisons. Opiumand Dangerous Drugs Ordinance and sentenced her to pay a fine of Rs. 2.000 and indefault of payment to undergo six months' rigorous imprisonment. She failed to pay thefine and was kept in the custody of the Fiscal Officers pending removal to prison toserve the default term. The Magistrate after adjourning the sittings of court for the daywas in his Chambers attending to his duties. Befc e his wife could be removed therespondent forcibly entered the Magistrate's Chambers carrying a child in his arms. Headdressed the Magistrate in rude language, abused nim and threatened to dash thechild on the floor and kill or cause bodily harm to ihe Magistrate if his wife was notreleased forthwith. By these acts the respondent intimidated the Magistrate into makingan order for the immediate release of his wife from lawful custody before she paid thefine or served the default sentence, an order which the Magistrate would otherwisehave not made at that stage. A Rule was thereupon issued on the respondent by theCourt of Appeal to show cause wliy he should not be punished for the offence ofcontempt of the Magistrate's Court of Kandy. The respondent appeared before theCourt of Appeal and pleaded guilty to the charge.
Held –
The jurisdiction of the Court of Appeal to punish for contempt of court includes, interalia, the power to punish for contempt of a court of first instance (Article 105 (3) of theConstitution). The punishment that can be imposed is imprisonment or fine or both asthe Court may deem fit.
Per Atukorale, J.
'Of all contempts committed against the lawful authority of courts of law the mostheinous are those which involve actual or threatened injury to the person of a judge witha view to intimidating him into revoking or altering an order or decision made by him inthe discharge of his judicial duties. The outrageous nature of the acts committed by therespondent constitutes not only an affront to the dignity and authority of the court butalso a direct challenge to the fundamental supremacy of the law itself. It is
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absolutely Imperative that such conduct, whenever or in whatever court it occurs,should be dealt with speedily, firmly and unmercifully. People like the respondent whohave but scant respect and regard for law and order and the courts of the land must bemade to realise that the arm of the law is sufficiently long and sufficiently strong to repelany attempts at undermining the authority of courts. It is our duty in situations such ashave arisen in the instant case to uphold and vindicate, not the personal reputation ofthe holder of the particular office, but the sanctity and supremacy of the authority ofcourts so as to secure the preservation of law and order and to ensure the protection ofthe future administration of justice. Viewed in this light the circumstances of this casecall for very deterrent punishment on the respondent."
RULE for contempt.
S. W. B. Wadugodapitiya. Additional Solicitor-General for the Attorney-General.Respondent present in person.
Cur.adv.vult.
June 26, 1984.
ATUKORALE, J.
The tacts pertaining to this contempt matter as placed before us wereas follows. The respondent's wife was charged in case. No.43128/84 of the Magistrate's Court of Kandy with having been inunlawful possession of 1123 grains of ganja, an offence punishableunder the Poisons, Opium and Dangerous Drugs Ordinance(Cap.218). On 25.1.1984 the Magistrate of Kandy found her guiltyand imposed on her a fine of Rs. 2,000 in default six months'imprisonment. She failed to pay the fine and was therefore kept in thecustody of Fiscal officers to be removed to prison for serving thedefault term of imprisonment. The Magistrate after adjourning thesittings of court for the day was in his chambers attending to hisduties. Before his wife could be removed, the respondent forciblyentered the Magistrate's Chambers carrying a child in his arms. Headdressed the Magistrate in rude language, abused him andthreatened to dash the child on the floor and to kill or cause bodilyharm to the Magistrate if his wife was not released foThwith. By theseacts the respondent intimidated the Magistrate into making an orderfor the immediate release of his wife from lawful custody before shepaid the fine or served the default sentence, an order which theMagistrate would otherwise have not made at that stage. Having soprocured his wife's release the respondent left the Chambers.
Upon these facts being brought to the notice of this Court by theAttorney-General, a Rule was issued by this Court on the respondentto show cause why he should not be punished for the offence ofcontempt of the Magistrate's Court of Kandy. He appeared before usin response to the Rule issued on him and on the charge being readout and explained to him and on being asked whether he had anycause to show he pleaded guilty to the charge. On being questioned
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Nanayakkara v. Liyanage Cyril (Atukorale. J)
195
by us he stated that he was 29 years of age. He admitted having fiveprevious convictions for offences under the Excise Ordinance. He alsoadmitted three other convictions – one for cheating and two forrobbery – for all of which he has been sentenced to an aggregate termof 2 years 9 months and 2 weeks rigorous imprisonment. Asked toplead in mitigation he replied that he had three children. He tenderedno apology nor an undertaking not to repeat this type of behaviour.Upon a careful consideration of the above facts and circumstancesand of the law relating to the nature of the punishment that could beimposed by us, we sentenced the respondent to a term of sevenyears' rigorous imprisonment and indicated that we would give ourreasons for doing so today (13.7.1984). Accordingly we set out ourreasons herein.
The offence of contempt to which the respondent has pleaded guiltyis criminal in nature. Some of the acts committed by him arepunishable under the Penal Code. A Magistrate's Court is one of theinstitutions created and established for the administration of justice inthis country. For this purpose a Magistrate is entrusted with theperformance of important judicial functions and duties. In the courseof the performance of such functions and duties he is called upon tomake various decisions and orders. There is no decision or order hecan make which cannot be challenged. But the challange must be byan appropriate application or proceeding made to this court inaccordance with law. It cannot be challenged by a violent display ofverbal threats or open defiance directed at the Magistrate himself. Ofall contempts committed against the lawful authority of courts of lawthe most heinous are those which involve actual or threatened injury tothe person of a judge with a view to intimidating him into revoking oraltering an order or decision made by him in the discharge of hisjudicial duties. The outrageous nature of the acts committed by therespondent constitutes not only an affront to the dignity and authorityof the court but also a direct challenge to the fundamental supremacyof the law itself. It is a type of contemptuous conduct which appearedto us to be umprecedented in the annals of the courts of this country.It is absolutely imperative that such conduct, whenever or in whatevercourt it occurs, should be dealt with speedily, firmly and unmercifully.People like the respondent who have but scant respect and regard forlaw and order and the courts of the land must be made to realise thatthe arm of the law is sufficiently long and sufficiently strong to repelany attempts at undermining the authority of courts. It is our duty insituations such as have arisen in the instant case to uphold and
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vindicate, not the personal reputation of the holder of the particularoffice, but the sanctity and supremacy of the authority of courts so asto secure the preservation of law and order and to ensure theprotection of the future administration of justice. Viewed in this lightthe circumstances of this case call for very deterrent punishment onthe respondent.
The jurisdiction of the Court of Appeal to punish for contempt ofcourt includes, inter alia, the power to punish for contempt of a courtof first instance – Article 105 (3) of the present Constitution. Thepunishment that can be imposed by us is imprisonment or fine or both"as the court may deem fit." The extent of the punishment that shouldbe meted out is left to our discretion. Our attention was drawn bylearned Additional Solicitor General to S. 800 of the Civil ProcedureCode. Prior to the repeal of this section by S. 20 of the Civil ProcedureCode (Amendment) Act, No. 53 of 1980, the Supreme Court (laterthe Court of Appeal) was empowered to impose a sentence ofimprisonment (simple or rigorous) for a term not exceeding 7 yearsand a fine not exceeding Rs. 7,000 in addition thereto or in lieuthereof. This section, though repealed now, would serve as a guide tothe extent of the punishment that may be imposed by us depending, ofcourse, on the facts and circumstances of each case. The fact that therespondent has 3 children is not a ground of mitigation. It did not evenevoke any sympathy from us for it is one of them that the respondentthreatened to dash on the floor in the immediate presence of theMagistrate. We were conscious of the fact that the respondent mayhave acted in the way he did out of a sense of sheer desperation ratherthan in a spirit of bravado. But if he paused to think for a moment hewould have realised that there were legal remedies open to his wife.He would also not have failed to realise that the desperate situation inwhich he thought he found himself was brought about by none otherthan his own wife by having had in her possession grains of ganja andcertainly not by the Magistrate. Although he is a young man of 29years he has had already several confrontations with the law for someof which he has been sentenced to terms of imprisonment. On a mostanxious consideration of all these matters and particularly the natureand the gravity of the contempt committed by the respondent we tookthe view that nothing less than 7 years rigorous imprisonment wouldhave constituted adequate punishment for him.
TAMBIAH, J. – I agree.
L. H. DE ALWIS, J. – I agree.
Respondent committed to prison.