Gnanaprakasam v. Sabaratnam.
1943Present: Moseley A.C.J.
GNANAPRAKASAM v. SABARATNAM.’
796—M. C. Jaffna, 20,006.
Obstructing Public Servant—Lawful Order—Penal Code, s. 183.
Where a District Judge purporting to act under section 839 of theCivil Procedure Code * made an order, which was not consistent withsound, general principles of law,—
Held, that obstructing a Public Servant, carrying out such an order,was not an offence under section 183 of the Penal Code.
Selvadurai v. Rajah et al. 141 N. L. R. 423) followed.
^^PPEAL from a conviction by the Magistrate of Jaffna.
S. Nadesan for first accused, appellant.
A. C. Alles, C.C., for Crown, respondent.
Cur. adv. vult.
160MOSELEY A.C.J.—Gnanaprakasam v. Sabaratnam.
January 13, 1943. Moseley A.C.J.—
The appellant was convicted of an offence punishable under section 183of the Penal Code in that he voluntarily obstructed a public servantor a person acting under the lawful orders of such public servant in thedischarge of his public functions. He was sentenced to pay a fine ofRs. 75. The charge arose out of circumstances following the death ofone Suppiah, who appears to have been in trade at Jaffna. He diedpossessed of no inconsiderable an amount of movable and immovableproperty. At the time of his death one Thuraiappah had a decreeagainst the deceased for' the sum of Rs. 30,733.95. The deceased hadappealed against that judgment and the appeal had been argued but thedeceased died, pending delivery of the judgment. The judgment-creditoralleging that he had reason to believe that the estate of the deceasedhad been or was likely to be tampered with, applied for letters ofadministration. He cited as respondents in the matter the' widow andtwo infant children of the deceased. He did not, however, disclose thatthe children were in fact infants nor that the deceased had left a willby which he appointed his widow executrix. The learned District Judgeheld the view that a grant of letters ad colligenda did not apply to thecircumstances of the case but it seemed to Rim that it was necessaryto make some order for the preservation of the estate, pending the grantof letters to such person who would be thereto entitled. He thereforeordered the Secretary of the Court to proceed to the house of the widowand to the shops which had been carried on by the deceased and take aninventory of all the stock-in-trade and movable property and further tobring into:Court any cash exceeding a sum of Rs. 100, which was to be leftwith the widow for her expenses. The order does not set out the.authority under which the learned District Judge purported to act.It can. only-' be assumed that he had in mind section 839 of the CivilProcedure Code, which is as follows : —
“ Nothing in this Ordinance shall be deemed to limit or otherwise
affect the inherent power of the Court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of
the Court. ”
The Secretary of the Court, armed with the order, proceeded to carryout the instructions therein contained and fdr that purpose went to thehouse of the widow, where he proceeded, apparently with the acquiescenceof the widow, to make an inventory. In fact, the widow would appearto have given the Secretary every assistance in order to enable him tocarry out what he believed to be his duty. The appellant, however,whose interest in the matter is- quite unapparent but who appears tohave been somewhat shocked by the intrusion of the Secretary into thehouse of the deceased upon a. day of wailing, questioned the right of theSecretary to take an inventory and ordered him out of the house. The-Secretary thereupon . left the house without completing . the task uporwhich he had entered.
It seems to me that-the only point for decision is whether the ordermade by the learned District Judge was a lawful order within the meaningof section 183 of the. Penal Code. There is clearly no express provision
Urn-mar and Rambukwella.
in the Civil Procedure Code for the making of such an order, and, as I havealready said, it can only be presumed that the aid of section 839 wasinvoked. This section, at first glance, would appear to invest the Courtwith very wide powers to make such orders as may be necessary for theends of justice. A wealth of authority was cited by Counsel forappellant whereby he sought to indicate the limits which have beenimposed by judicial authority upon the exercise by the Courts of thepower given by the section. I have considered all the authorities butdo not feel that it is necessary to refer expressly to any one of them be-yond observing that they appear to support the view of Wijeyewardene J.,in Selvadurai v. Rajah et al. to the effect that a Court “ must becareful to see that its decision is in harmony With sound general legalprinciples and it is not inconsistent with the intentions of the Legisla-ture. ” I do not propose to express any view as to the legality or other-wise of the order of the learned Judge in regard to the taking of theinventory, but it seems to me that the order directing the Secretary tobring into Court any cash exceeding a sum of Rs. 100 cannot be saidto be consistent with sound general principles of law. The order in thisrespect, on the face of it, embraces all money which might be foundin the house, irrespective of the person or persons to whom it belonged.This part of the order, therefore, seems to me, notwithstanding the argu-ment of Crown Counsel that it must be presumed to be legal, manifestlyillegal.
However one'may view the conduct of the appellant, it seems to meclear that he committed no offence for which he is punishable by law.I allow the appeal and set aside the conviction and sentence.
‘ Set aside.