005-NLR-NLR-V-50-GALAPATHY-Appellant-and-MARTIN-Respondent.pdf
Oalapathy v. Marlin.
IT
1948Present : Nagalingam J.
GALAPATHY, Appellant, and MARTIN, Respondent.
S. C. 490—M. C. Tangalla, 86.
Urban Councils Ordinance—Councillor hairing contract with Council—Penalty
Disqualification from sitting—Ordinance No. 61 of 1939, s. 238.
Where a person has been convicted under section 238 of the UrbanCouncils Ordinance, No. 61 of 1939, on a charge of having been concernedin a contract with the Council it is competent for the Magistrate-in passing sentence to make a declaration that he is disqualified fromsitting in Council. This is one of the penalties imposed by the section,
PPEATj from a judgment of the Magistrate, Tangalla.
H. V. Perera, K.C., with S. W. WaVpita, for accuse, appellant.
S. Jayawickreme, for complainant, respondent.
Cur. adv. vult.
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NAG ALIN GAM J.—Qalapathy v. Martin.
■October 5, 1948. Nagalingam J.—
The accused-appellant who was at the relevant dates the Vice-Chairman■of the Urban Council of Tangalla was prosecuted with having committedan offence punishable under section 238 of the Urban Councils Ordinance,No. 61 of 1939, in that directly or indirectly he had been concerned orhad a financial interest in a contract with the Council and was foundguilty of the offence. The learned Magistrate passed sentence on theaccused in the following terms :—“ The penalty fixed by section 238 (2)is a fine not exceeding Rs. 500 and disqualification from sitting in Council.
I impose that penalty”. There is very clear and convincing evidencewhich leaves no room for argument that the charge against the accusedis conclusively established. The conviction in these circumstanceshas therefore not been challenged.
The point, however, has been taken on behalf of the accused thatit was not competent to the learned Magistrate in passing sentence toto make a declaration that he was disqualified from sitting in Council.It has been urged that the disqualification attaches to a member who isconcerned or has a financial interest in any contract with the Councilirrespective of the question whether he is found guilty or not of being soconcerned or having a financial interest and no declaration is thereforenecessary or required by the section. It is true that the words of thesection, “ If any member …. is concerned or has any financialinterest in any contract …. made with …. the Council,he shall be guilty of an offence punishable with a fine not exceedingRs. 500 and shall …. be disqualified from sitting as a memberof the Council” are capable of a metaphysical interpretation, namely,that directly a member is so concerned or has a financial interesthe finds himself in a state or condition of having committedthat offence and becomes liable to punishment by having asentence of fine imposed on him and also becomes disqualified fromsitting as a member. But I do not think that the words are used herein that sense. The words must be interpreted in their legal sense andwould and can then only mean that the person becomes liable to punish-ment by having a sentence of fine imposed on him, and also becomesdisqualified from sitting as a member on his being found guilty of doingthe prohibited act by a competent tribunal.
If one followed the phraseology of the Penal Code, this section wouldrun as follows: “Whoever being a member …. of an UrbanCouncil is concerned or has any financial interest in any contract. with the …. Council, he shall be punished witha fine not exceeding Rs. 500 and shall …. be disqualifiedfrom sitting as a member of the Council ”. Read in this way,it is clear that the penalty is two-fold comprising firstly a fineand secondly a disqualification from sitting as a member. I do notthink that the language employed in section 238 was intended to have adifferent effect. The disqualification from sitting as a member is aconsequence that may flow out of and follow upon a conviction by acompetent tribunal and not otherwise. I do not think it would bepossible to prosecute a member for sitting while disqualified by reason
WAO.AT.TTJGAM J.—Galapathy v. Martin.
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of his having been concerned in or having had a financial interest in anycontract •with the Council without the member first being convictedunder section 238 of the Ordinance.
Now, if a Magistrate after convicting a member under section 238of the Ordinance only imposes a fine, but does not declare him to bedisqualified from sitting as a member, it may very well be argued, andargued successfully, that the disqualification does not attach to themember, for it may be said that while the Legislature may have intendedto make the disqualification an imperative one, where the Magistratedoes not impose the disqualification even though erroneously, the dis-qualification does not in fact attach ; the position would be analogousto a case where the law prescribes that a jail sentence should be imposedin addition to a fine and the sentence imposed is a fine only ; in such acase it is unquestionable that the prisoner cannot he said to have sufferedimprisonment. In the present case similarly it cannot be contendedthat without an order of the Magistrate to that effect the accused hadbecome disqualified; furthermore, a declaration of disqualificationby the Magistrate would also have a large bearing on the questionwhether the member acted knowingly in sitting as a member after hebecame disqualified—an essential requirement of section 29 of theOrdinance. Apart from a disqualification following on a conviction,disqualification can also attach independently of any conviction what-soever, as for instance, where a member after election ceases to have thequalification required by section 8 of the Ordinance ; but we are notdealing with this class of disqualification here.
Without making an attempt at an exhaustive classification, thepunishment imposed by a Legislature may be grouped under the followingheads :—
Infliction of personal injury, e.g., corporal punishment ;
{b) Deprivation of property, e.g., a fine or forfeiture of property ;
Deprivation of personal liberty, e.g., imprisonment;
Deprivation of civic rights, e.g., disqualification from acting in a
civic office.
In the present ease, there can be little doubt that the Legislature intendedto impose penalties which fall under categories (6) and (d) above, andwhere penalties are prescribed for an offence, it is the duty of the tribunalto impose the appropriate punishment. I am therefore of the viewthat the learned Magistrate acted properly in declaring the accuseddisqualified from sitting as a member.
The appeal therefore fails and is dismissed. I think this is a fit casewhere the complainant should be paid his expenses for carrying on thisprosecution which he has undertaken as a public duty. I would,therefore, direct that out of the fine recovered the costs of the complainantboth in the Magistrate’s Court and in this Court be paid torhim by way ofcompensation.
Appeal dismissed.