In re WIJESINGHE

083-NLR-NLR-V-16-In-re-WIJESINGHE.pdf


( 312 )
1913.
[Full Bench.]
Present : Pereira, Ennis, and De Sampayo JJ. .
In re WIJESINGHE.
Appeal—Conviction for contempt of Court by Judge of Supreme Court—Right of appeal to a IPull Bench—Courts Ordinance, a. 51—CivilProcedure Code, a. 798.
A person committed to jail, or sentenced to pay a fine, on con-viction for contempt, by one or more Judges of the' SupremeCourt in the exercise of powers vested in the Court by section 51of the Courts Ordinance, has no right of appeal. Section 798 of'the Civil Procedure Code does not apply to orders made andsentences passed by one or more Judges of the Supreme Court.
I
N this case one Wijesinghe was charged for contempt of Court,in that he attempted to influence certain jurors who formed
the panel of jurors summoned for the Criminal Sessions of theSupreme Court holden at Matara, and was convicted – by thepresiding Judge (Wood Benton A.C.J.) and sentenced to one year'ssimple imprisonment. The accused appealed.
Garvin, Acting S.-U., for the Crown.—There is no appeal againsta conviction by .a Judge of the Supreme Court for a contempt ofCourt. There Is an appeal from a decision of a Judge of theSupreme Court to two Judges of the Supreme Court only in thespecial case provided for in section 40 of the Courts Ordinance.
Elliott (with him J. W. de Silva), for the appellant.—Undersection 798 an appeal lies to the Supreme Court from “ everyconviction made by any Court in the exercise of its special juris-diction to take cognizance of, and to punish by way of summaryprocedure the offence of contempt of Court."
The appeal lies from a conviction of " any Court the wordsare wide enough to include an appeal from a conviction by a Judgeof Che Supreme Court for contempt of Court.
Under section 39 of the Courts Ordinance an appeal lies from adecision of one Judge of the Supreme Court to two Judges.
June 4, 1918. Pereira J.—
In my opinion this appeal cannot be entertained. Tt is a well- .established principle of law that an appeal never lies to a party toa legal proceeding from an order made in it unless the right isexpressly given by statute (see Rex v. The Justices of CShiobiry 1
*31). rfB. 35.
( 313 )
and Attorney-General v. Silent l); and so far as I can see, there is noright of appeal given anywhere from an order made by this Courtunder the powers conferred on it by section 51 of the CourtsOrdinance. The appellant’s counsel has cited section 798 of theCivil Procedure Code in support of his contention, but that sectioncannot be said to give a right of appeal from an order made bythe Supreme Court in .a case of contempt pf Court. This Court may,or perhaps must, in such a case adopt the procedure laid down inchapter LXV. of the Civil Procedure Code, of which section 798 isone of the sections, but the provision of that section as to appealsrefers only to appeals from orders made by the inferior Courts.The fact that the section provides that an appeal' shall lie to theSupreme Court is, in the absence of explanatory words, indicativeof an intention on the part of the Legislature to exclude the idea ofan appeal from an order of that very Court, because, otherwise,we. should be confronted with the anomaly of an appeal from anorder of the four Judges of this Court sitting collectively to thesame four Judges. It appears to me that there is a great deal inthe 44 subject or context " (to use the words of the interpretationclause of the Civil Procedure Code) repugnant to the constructionsought to be placed by the appellant’s counsel on the expression“ any Court ” in section 798. If it is assumed that an appeal liesunder that section from an order of the Supreme Court in a caseof contempt of Court the question would naturally arise whetherthere is any special provision as to the constitution of the Courtfor dealing with such an appeal. Manifestly section 41 of theCourts Ordinance cannot apply to such an appeal. That being so,the appeal would Have to be dealt with by the Supreme Courtas defined by section 8 of the Courts Ordinance, that is to say, bythe Court 44 consisting of and holden by or before four Judges."So that where under section 51 of the Courts Ordinance, the Courtconstituted in accordance with section 8 tries a charge of contemptof Court, the anomaly that I have already pointed out of an appealfrom an order of four Judges to the same four Judges, will be theresult. It is clear, therefore, that the construction contended forby the appellant’s counsel cannot be placed on section 798 of theCivil Procedure Code. Moreover, the section refers to appeals froman order of a Court in the exercise of its “ special jurisdiction totake cognizance of and punish by way of summary procedure theoffence of contempt of Court." The reference here clearly is tothe 44 special jurisdiction ” conferred on District Courts, Courts ofBequests, and Police Courts by section 59 of the Courts Ordinance,which provides that such Courts 44 shall for the purpose of main-taining their proper authority and efficiency have a special juris-diction to have cognizance of and to punish every offence of con-tempt of Court committed in the presence of the Court itself," &c. i
1918.
Fbbbzba J.In re
Wifeernghe
i 10 H. L. C.704.
1918.
Pkbseba J..In re
Wtjesmghe
( 314 )
Reference has also been made to section 89 of the Courts Ordinance.,but that section does not contain the provisions of the law conferringan appellate Jurisdiction oh the Supreme Court. It rather makesprovision touching the exercise of such jurisdiction conferred else-where. It provides for the place at which, and the extent to which,such jurisdiction may be exercised; that is to sayt it provides thatsuch jurisdiction shall be ordinarily exercised in Colombo, and itshall extend to the correction of all errors in fact or in law committedby any Judge from whose orders an appeal is given to the SupremeCourt. The right of appeal itself is given from an order of oneJudge of the Supreme Court, in certain circumstances, to two otherJudges by sections 40 and 41 of the Courts Ordinance, from ordersof District Courts to the Supreme Court by section 75, from ordersof Courts of Bequests by section 80 of the Courts Ordinance, andfrom orders of Police Courts and (in criminal matters) of DistrictCourts by section 338 of the Criminal Procedure Code, but nowhereis an appeal allowed from an order of one or more Judges of theSupreme Court made in exercise of the power or authority conferredon the Court by section 51 of the Courts Ordinance to try in asummary manner any offence of contempt committed against or indisrespect of the authority of itself, or of any other Court which(in the latter case) such Court has not the power under the specialjurisdiction conferred on it by section 59 to take cognizance of.
For the reasons that I have given, I would dismiss the presentappeal.
Ennis J. and De Sampayo J. agreed.
Appeal dismissed.