059-NLR-NLR-V-63-IN-RE-U.-P.-JAYATILAKE.pdf
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TAMBIAH, J.~—In re Jayatilake
1961Present : Tamblah, J.
In ws U. P. JAYATTLAKES. C. 495—Application in Revision in M. C. Colombo South, 8078
Contempt of Court—Jurisdiction of an inferior Court to punish for contempt of court—
Newspaper publications—Principles underlying law of contempt—Courts
Ordinance (Cap. 6), *s. 47, 57—Civil Procedure Code, s. 839.
In the course of an order made by him a Magistrate had stated, “ Theft ofarticles from Government Departments is frequent but not easily detectedThe respondent-petitioner, who was a newspaper reporter, published a newsitem stating that the Magistrate, when passing a sentence of three months’rigorous imprisonment on a railway watcher for having stolen pieces of brass,had said, “ Thefts in Government institutions are increasing by leaps andbounds The Magistrate, thereupon, issued a notice directing the respondent-petitioner to appear before him to show cause, if any, why he should not bepunished for contempt of court for publishing a false report.
Held, that the publication of the false report, even if it was assumed toamount to a contempt of court, was not punishable by the Magistrate undersection 57 of the Courts Ordinance inasmuch a3 : (1) it was not committedin the presence of the court, and (2) it was not an offence which was committedin the course of any act or proceeding in the court, and which was declared byany law to be punishable as a contempt of court.
Held further, that the publication for which the respondent-petitioner wasresponsible could not be said to amount to a contempt of court.
to set aside an order of the Magistrate’s Court,
Colombo South.
Q.T. Samaraivickreme, for the respondent-petitioner.
J. O. T. Weeraratne, Crown Counsel, with H. B. White, Crown Counsel,as amicus curiae
Cur. adv. milt.
March 2, 1961. Tambiau, J.—
This is an application to revise the order of the learned Magistrate ofColombo South asking the respondent-petitioner to show cause whyhe should not be dealt with for contempt of Court. The facts leadingto the making of this order are briefly as follows :
The learned Magistrate in the course of an order he made in caseNo. 466/N had statedTheft of articles from Government Departmentsis frequent but not easily detected ”,
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The respondent-petitioner is a correspondent of the “ Ceylon DailyNews * On the 14th October 1960 the following news item, for whichhe was responsible, appeared in the above newspaper in reference to theabove case :—
“ Watcher Stole.
(From our Mt. Lavinia Correspondent)
* Thefts in Government institutions are increasing by leaps and boundssaid Mr. D. S. L. P. Abeyasekera, the Colombo South Magistrate, in passinga sentence of three months’ hard labour on a railway watcher, S. D.Wilbert, of the Railway Workshops, Ratmalana, for having stolen piecesof brass. ”
On 14.10.60, the learned Magistrate issued notice directing therespondent-petitioner to appear before him on 17.10.60 and to showcause, if any, why he should not be punished for contempt of Courtfor inserting a false report in the “Ceylon Daily News ” of 14.10.60. Thelearned Magistrate fixed the matter for inquiry, and, by the order of thisCourt, he was requested to stop further proceedings. On 17.10.60,when the respondent-petitioner appeared in Court, it was submittedon his behalf that the Magistrate had no jurisdiction to inquire into andadjudicate upon the charge of contempt of Court as the act alleged wasnot done in the presence of the Court. The learned Magistrate adjournedproceedings till 8.11.60 as he desired to obtain assistance from theAttorney-General. However, on 8.11.60 the Magistrate stated thathe had decided the matter, and did not require assistance from theCrown Counsel, and purporting to act under section 839 of the CivilProcedure Code, held that he had jurisdiction to adjudicate upon thecharge.
It is necessary to consider the statutory provisions of our law dealingwith contempt of Court. Under section 47 of the Courts Ordinance,the Supreme Court is given “full power and authority to take cognizanceof and to try in a summary manner any offence of contempt committedagainst or in disrespect of the authority of itself or any offences of contemptagainst or in disrespect of the authority of any other Court and which suchcourt has not jurisdiction under section 57 to take cognizance of and punish,and, on conviction, to commit the offender to jail until he shall havepurged his contempt or for such period as to the Court or Judge shallseem meet. ” Only a limited power to punish for contempt is conferredon the Court of Requests, Magistrate’s Court and District Court, bysection 57 of the Courts Ordinance, which is as follows :
“ Every District Court, Court of Requests and Magistrate’s Courtshall, for the purpose of maintaining its proper authority and efficiencyhave a special jurisdiction to take cognizance of, and to punish by theprocedure and with the penalties in that behalf by law provided, every
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offence of contempt of court committed in the presence of the court itself,and all offences which are committed in the course of any act or proceedingin the said courts respectively, and which are declared by any law for thetime being in force to be punishable as contempts of court. ” The publicationof the false report by the respondent-petitioner, which is the subjectmatter of this case, does not fall within the Magistrate’s jurisdictionunder the above section inasmuch as :
(]) it was not committed in the presence of the court, even if it isassumed to amount to a contempt of court, and (2) it is not an offencewhich was committed in the course of any act or proceeding in the court,and which is declared by any law to be punishable as a contempt ofcourt.
Section 57 of the Courts Ordinance has been interpreted authoritativelyby a Divisional Bench of the Supreme Court in several cases. InAnnamalay Ghetty v. Gunaratne1 Withers J. said, “The civil Court’sjurisdiction to deal with offences of contempt is limited to the provisionsof section 59 ” (now section 57) “ of the Courts Ordinance No. 1 of 1889,and to special provisions in the Civil Procedure Code. Section 59 enactsthat a District Court may take cognizance of offences of contempt ofCourt committed in the presence of the Court itself, and of all offenceswhich are committed in the course of any act or proceeding in the saidCourt, and which are declared by any law for the time being in force tobe punishable as contempts of Court. ” In this case the view was takenthat disobedience by a judgment-debtor of an order made under section219 of the Civil Procedure Code to attend court for examination is notpunishable as contempt of court under Chapter 17 of the Code. InKing v. Samarawira 2 a Divisional Bench, following the ruling in theabove case, held that possession of land by a receiver appointed by aDistrict Court is possession by the Court, and contumacious interferencewith the possession of the receiver is punishable as a contempt of Court.But such contemptuous interference ex facie curiae with the possessionof the receiver is punishable only by the Supreme Court, and not by t>heDistrict Court. In Re Molamure3 a Divisional Bench took the viewthat where a District Court issued a probate to an executor and allowedhim to withdraw from the bank a certain sum of money lying to thecredit of the estate leaving a balance, which was intended to defraythe cost of estate duty, a disobedience of the order of the District Courtamounted to contempt of its authority, but in the circumstances theSupreme Court alone had jurisdiction to take cognizance of, and punishsuch a contempt. Macdonell C.J., in the course of his judgment, referredto sections 51 and 59 (now 47 and 57 respectively) of the Courts Ordinanceand drew a clear distinction between the powers of the Supreme Courtand those of the other courts of this country in dealing with contemptof.court. He said (at p. 42), “ The contempt alleged here was committed* against or in disrespect of the authority of another Court ’, and if that
1 (7895) 1 N. L. R. at p. 50.• (1917) 19 2s. L. R. 483.
* (1935) 37 N. L. R. 33.
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Court has no jurisdiction under section 59 to take cognizance of and punishsuch a contempt, then clearly it is this court which is empowered to do so. ”Instances of conduct declared to be contempt of Court and punishableas such are found in sections 137, 294, 295, 358, 650, 656, 682, 713, 717and 718 of the Civil Procedure Code.
What has been said so far is sufficient to dispose of this application,but Mr. J. G. T. Weeraratne, who appeared as amicus curiae, invitedthe court to deal with this matter more fully so that judges of the DistrictCourt, Court of Requests and Magistrate’s Court may have guidance.
Many systems of jurisprudence recognise the right of a Court of law topunish persons for the commission of acts in contempt of its authority.Referring to the jurisdiction of the Court to punish for contempt, LordRussel observed in Rex v. Gray x: “This is not a new-fangled jurisdiction ;it is a jurisdiction as old as the common law itself, of which it forms part.It is a jurisdiction the history, purpose, and extent of which are admirablytreated in the opinion of Wilmot, C.J., (then Wilmot J.) in his Opinions andJudgments. It is a jurisdiction, however, to be exercised with scru-pulous care, to be exercised only when the case is clear, and beyondreasonable doubt; because, if it is not a case beyond reasonable doubt, theCourts will, and ought to, leave the Attorney-General to proceed by criminalinformation Even in England a distinction has been made between thepowers of the superior and inferior courts of record to punish for contempt.The “ Encyclopaedia of the Laws of England ”, (Vol. 3, p. 314) states thelaw succinctly as follows : “ The jurisdiction of inferior Courts of record(such as the Court of Quarter Sessions, the Mayor’s Court and CountyCourt) is confined to such contempts as are perpetrated in facie curiae(as in R. v. Lefroy 2 and R. v. Jordan 3), and does not extend to such as arecommitted out of Court unless by virtue of some statutory enactment. ”The legislative provisions of Ceylon appear to have followed thedistinction observed in the English Courts. The history of our legislationon this subject is set out fully by Shaw J. in King v. Samarawira (supra).After referring to the rules and regulations and the Charter of Justice,he states (at p. 437), “ In this condition of the law the Courts Ordinance,1889, was passed. This Ordinance is not a mere consolidation Ordinance,but as the preamble states, it is an Ordinance ‘ to consolidate and amendthe laws relating to the constitution, jurisdictions, and powers of theCourts After the Courts Ordinance came into operation one has tolook at the sections of the Ordinance to determine the powers of ourCourts in matters of contempt. The Criminal Procedure Code alsocontains provisions which make certain acts punishable as contemptof Court. These are the offences under sections-173, 176, 177, 178, and123 of the Penal Code. Sec.ion 380 of the Criminal Procedure Codeprovides that certain other offences in the nature of contempts of courtreferred to in section 147 paragraph (6) and (c) shall be sent for inquiryand trial to the nearest Magistrate’s Court, and, finally, after providing
1 (1900) 2 Q. B. D„ at pp. 40-41.* (1873) L.R. 8 Q. B. 134.
(1888) 57 L. J. Q. B. 483.
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procedure by which summary proceedings shall be governed, laysdown that except as provided, “ No District Judge or Magistrateshall try any person for any offence referred to in section 147 (1),paragraph (6) and (c), when such offence is committed before himselfor in contempt of his authority or is brought under his notice as suchDistrict Judge or Magistrate in the course of a judicial proceeding. ”(See section 384 of Criminal Procedure Code.) The contention thatsection 59 of the Courts Ordinance is not exhaustive of the powersof the District Courts to punish summarily for contempt and thatsuch Courts have an inherent power to punish summarily all contemptswas rejected in King v. Samarawira {supra) (at p. 438). Section 839of the Civil Procedure Code no doubt gives inherent powers to the DistrictCourt and Courts of Requests, but those powers cannot be invoked toconfer jurisdiction over those particular aspects of the law ofcontempt of court which are already provided for by statute. Asde Kretser J. held in Kamala v. Andris1, section 839 is not intended toauthorise a court to override the express provisions of the Code. If contemptsof court, which do not come within the purview of the District Court,Court of Requests or Magistrate’s Court to punish are committed, thenit is the duty of judges who preside in such courts to report the matterto the Supreme Court, which in appropriate cases will take cognizanceof such matters. It is clear that the learned Magistrate was not rightin invoking the inherent powers of the Court in justification of the chargeof contempt against the respondent-petitioner. The scope within whichan appeal to such inherent powers can succeed was pointed out in thefollowing words by Humphreys J., in Re a Solicitor a, “ This applicationcomes before the court in that most attractive form, an appeal to theinherent, jurisdiction of the court. The judges of this division havealways been friendly to such an application based upon that ground,but one has to remember, however desirable it may be in order to preventinjustice not to confine within too strict limits what is known as theinherent jurisdiction of the Court, it is quite another thing for this courtto be invited to override the terms of statutes …”
Mr. Samarawickreme, counsel for the Respondent-petitioner as wellas Mr. Weeraratne further contended that the report published at theinstance of the respondent-petitioner cannot in any event be construedas a contempt of court. In Reginald Perera v. King3, Lord RadclifFe,citing with approval the dictum in Rex v. Gray (supra), said : “ It isproper that the Courts there should be vigilant to correct any misappre-hension in the public that would lead to the belief that accused personsor prisoners are denied the right that ought to be theirs. But Mr. Pereratoo has rights that must be respected, and their Dordships are unable tofind anything in his conduct that comes within the definition of contemptof court. That phrase has not lacked authoritative interpretation.There must be involved some ‘ act done or writing published calculated tobring a Court or a judge of the Court into contempt or to lower his authority ’
.» (193u) 41 1V. L. R. at p. 72.* (1944) 2 A. E. R. a p. 434.
* (1951) 52 N. i. R. at p. 296.
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or something calculated to obstruct or interfere unth the due course of justiceor the lawful process of the Courts. ” In this case it was held that anentry made by Mr. Perera, who was a Member of Parliament, in theVisitors’ Book of the Colombo Remand Prison that the “ present practiceof appeals of Remand prisoners being heard in their absence is not healthy ”,was held not to amount to contempt of court although it was not in facta correct statement.
The principles underlying the law of contempt, qua press publications,are enunciated in a work entitled, “ The law of Contempt of Court andof Legislature ” by Teck Chand and H. L. Sarin (2nd Edition at pp. 249?251), as follows :
“ 1. It is a contempt of Court to scandalise the Court or offendagainst the dignity of a Judge by attributing to him dishonesty orimpropriety or incompetence, regardless of the fact whether the casewith reference to which the offending remarks were made is pendingin the court, or has been decided.
“ 2. It is a contempt of Court to publish an article in a newspapercommenting on the “proceedings of a pending criminal case or a civilsuit, reflecting on the Judge, jury, the parties, their witnesses orcounsel appearing in the case. It is immaterial whether the remarksare made with reference to a trial actually proceeding, or with referenceto a trial which is yet to proceed, provided that the comment has atendency to prejudice the fair trial or influence the decision.
“ 3. It is a contempt of Court to publish any matter affectingthe proceedings of a pending case which has a tendency to prejudicethe public for, or against a party, before the cause is finally heard.It is not necessary to prove that a Judge or jury will be prejudiced.
“ 4. General criticism of the conduct of a Judge, not calculatedto obstruct or interfere with the administration of justice, or theadministration of the law in any particular case, even though libellous,does not constitute a contempt of Court ….”
“Lord Hardwicke in Bead v. Hugganson1 said that there are threedifferent sorts of contempts :
{a) One kind of contempt is scandalising the Court itself.
(6) There may be likewise a contempt of this Court in abusingparties who are concerned in causes here.
(c) There may be also a contempt of this Court in prejudicingmankind against persons before the cause is heard. ”
Applying the principles set out both in case decisions and text books,the publication for which the respondent-petitioner was responsiblecannot be said to amount to a contempt of court. In this connexion
1 {1742) 26 E. B. 283=2 Aik. 469.
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the words of Flotcher-Moulton L.J. in Scott v. Scott1 (which was upheldby the House of Lords) are apposite. He said, “ The courts are theguardians of the liberties of the public and should be the bulwark againstall encroachments on those liberties from whatsoever side they may come.It is their duty therefore to be vigilant. But they must be doubly vigilantagainst encroachment by the courts themselves. In that case it is theirown actions which they must bring into judgment and it is against them-selves that they must protect the public. ” It is, however, unfortunatethat the respondent-petitioner who was responsible for the publica-tion in question, has not expressed his regret as a matter of courtesyto the Magistrate whose words were misreported.
For the reasons I have already stated, I set aside the order of thelearned Magistrate calling upon the Respondent-petitioner to showcause for contempt.
Order set aside.
1 {1912) P. 241, at p. 274.