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Present: Akbar J.
In the Matter of a Contempt of Court by P. C. Siriwardene.
Habeas corpus—Application for writ—Dismissgji—Similarapplication
to another Judge—Powers of Supreme' Court—Courts Ordinance,No. 1 of 1889, s. 49.
Each Judge of the Supreme Court is bound to entertain anapplication for a writ of habeas corpus and to determine the applica-tion on its merits, notwithstanding the fact that another Judgehas refused a similar application by the applicant.
ULE issued by the Supreme Court on the respondent to showcause why he should not be punished fox contempt of Court.
The facts appear from the judgment.
N. E. Weerasooria, for the respondent.
July 5, 1929. Akbar J.—
The applicant on May 21 swore an affidavit asking for the custodyof two children who he said were his children, their mother, therespondent, having been his mistress. In this affidavit he statedthat the respondent was leading a bad life, that she was not takingdue care of the children, and that he was in a position to giveproper education to them by boarding them in a boarding school.He made no mention of any previous application by him to anyCourt in respect of these children. When I asked him to quotethe number of any maintenance case in which he was sued by therespondent, he referred me to P. C., Colombo,' 13,743. This casediscloses the previous history of this matter. The respondent-applied for the maintenance of these two children on February 6,
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IMS. 1928. About the same time the applicant made ak applicationaJ. *° Ik*8 Court for a writ of habeas corpus, which was referred to thePolice Magistrate of Colombo for report. At the request of both theifQ/a Cw!?* °Pphoant and the respondent the petition and affidavit sent by theiaitpt of applicant were sent to the Police Magistrate, . Colombo, to be*bOuirerl into in the maintenance case, P. C., Colombo, 18,743.dene The petitioner urged the same grounds which he has mentionedin the affidavit before me, but the Police Magistrate disbelievedhis case and ordered him to pay Rs. 85 per month for the twochildren. . During the course of his cross-examination he wasactually asked the question whether he had not applied to theSupreme Court in 1928, because he was aware of the institutionof the maintenance case, but the question was dropped as thesummons in the maintenance case wa3 served a few days after hisapplication to the Supreme Court. The proceedings also showthat the petitioner went to a different Proctor to file these papersnow before me. Mr. J. H. Ratnaike, Proctor, admitted that hewas not told by the petitioner about the previous applicationsmade by the petitioner. So that on the facts there can be nodoubt at all that the petitioner deliberately refrained from men-tioning the previous application by him and the result of the main-tenance case in wbich he did not appeal to this Court. To say theleast, his affidavit was disingenuous. On- these facts I issued anotice on him to show cause why he should not be punished for acontempt of this Court. Mr. Weerasooria however has broughtto my notice a decision of the Privy Council, namely, the case- ofEleko v. Government of Nigeria,l in which the Privy Council heldthat an applicant was entitled to make his application in similarcircumstances to any Judge of the High Court and that the Judgemust hear the case on the merits. They further held that a Judgewas bound to hear and determine such an application on its merits,notwithstanding that some other Judge had already refused asimilar application. It is significant that under the Courts Ordi-nance, No. 1 of 1889, section 49, the Supreme Court or any Judgethereof is authorized to grant and issue a writ of habeas corpus.I am bound by the decision of the Privy Council that the applicationof the applicant must be considered on its merits notwithstandingthe fact that the same question had been determined against theapplicant by another Judge of this Court. The rule must thereforebe 'discharged.
1 (1928) A. 0. 459.
In the Matter of a Contempt of Court by P. C. Siriwardene