135-NLR-NLR-V-58-K.-D.-ABILIAN-Appellant-and-K.-D.-DAVITH-SINGHO-et-al.-Respondents.pdf
1955Present : Sansoni, J., and H. N. G. Fernando, J.
K.D. ABILfAX, Appellant, and K. D. DAVITH SINGHOel al., Respondents
S. C. 2S (Cr.)—D. G. AvissaweJla. 6,510
Contempt of Court.—Chapter 65 of Civil Procedure Code—Proper-procedure—Rightof appeal—Courts Ordinance, s. 57—Criminal Procedure Code, ss. 335, 338—Civil Procedure Code, ss. 706, 797, 70S—Partition Act, A'c. 16 of 1951, s. 53.
In an appeal from a conviction for contempt- of Court under section 53 of thePartition Act—
Held, (i) that section 335 of tho Criminal Procedure Code does not apply intho rases of an appeal unclor section 79S of tho Civil Procedure Code.
(ii) that a person cannot bo convicted of contempt of Court under tho provi-sions of Chapter 65 of tho Civil Procedure Code on tho basis of tho answers givenby him in tho courso of an interrogation by tho Judgo.
.1^.PP15AL from a judgment of the District. Court. Avissawella.
//. IT. Tambiah, with U. P. WccrasingJte and II. L. do Silva, for the1 st- defcmlant-appellant.
-S'. -/. Kadh'jnmar, with P. Somalilalam, for the plaintiff-respondent.
'Cur. ridv. vjilt.
September 13, 1955. H. X. G. Ferxaxdo. J.—
The appellant has been convicted of the offence of contempt of Courton the ground that, after a Fiscal’s officer had given symbolic possessionof a land to the plaintiff in execution of a partition decree, the appellant-(a defendant in the partition action) refused to give up physical possessionof the land to the plaintiff and also tapped tho rubber trees and pluckedcoconuts on the land. The learned District Judge purported to act undersection 53 of the Partition Act, No. JG of 1951, which enacts a new provi-sion empowering the Court to punish as for a contempt persons guiltyof disobedience, resistance or obstruction of the description specified in
the section ; it is not necessary for the purposes of this appeal to considerwhether the conduct of the ajjpellant falls within the specified description.,and I shall assume that the section was applicable.
In the absence of specific provision in the Act as to the procedure to befollowed in cases falling under section 53, the learned Judge rightly decidedthat the provisions of Chapter 65 of the Civil Procedure Code would apply.Section 57 of the Courts Ordinance confers on a District Court, a specialjurisdiction to punish infer alia offences “declared by any Jaw to bepunishable as contempts of Court”, and section 53 of tho Partition Actis but one. instance of a law contemplated in thcCourts Ordinance. Hencethe procedure in the case of offences declared by section 53 of the Actwould be the procedure “in that behalf by law provided”, namelyChapter 65 of the' Code.
The learned Judge sentenced the appellant, to two weeks simpleimprisonment. The preliminary objection has been taken that, havingregard to the sentence imposed, leave of Court was necessary as requiredby' section 335 of tho Criminal Procedure Code. It was argued that thisrequirement applied, because section 70S of the Civil Procedure Codeprovides that the procedure in an appeal from a conviction for contemptshall “ follow the procedure laid down in the Criminal Procedure Coderegulating appeals from orders made in the ordinary criminal jurisdiction”.
I do not think that the argument is sound. In the first place, section 79Sconfers a right of appeal “ from every order, sentence or conviction ” forcontempt : and it is at least doubtful whether this apparently absoluteright of appeal is limited by anjr qualifying provision in the CriminalProcedure Code. ^Moreover, it is only the procedure laid down in theCriminal Procedure Code regulating appeals, that is declared to be appli-cable ; but the limitations in section 335 (though contained in a code ofprocedure) arc substantive restrictions of the right of appeal conferredby section 33S and are not merely procedural. I would therefore holdthat section 335 of the Criminal Procedure Code does not apply in theease of an appeal under sec tion 79S of the Civil Procedure Code.
The procedure prescribed by Chapter 05 of the Code requires the Courtto commence the hearing by asking the accused person whether or not hoadmits tho truth of the charge ; this the learned Judge failed to do in thepresent case. DCvcn if that failure docs not invalidate the conviction,there was a more serious irregularity in the proceedings. After recordingevidence in support of the charge against the appellant, the learnedJudge “ called upon him ” for his statement if am*. Thereafter theJudge questioned the appellant and recorded his answers. The appellantwas also permitted to be cross-examined. The order convicting theappellant was based to an appreciable extent on the answers given byhim in the course of this interrogation b" the Judge.
Section 797 contemplates that the Court will hear the accused person'sexplanations, but- that obviously would mean hearing an explanationvoluntarily given : tlie section cannot be construed as authorising theprocedure which the learned Judge has adopted in this case.
I would accordingly set aside the conviction and sentence and acquitthe accused.
Appeal allowed.
Sansoxt, .J.—I agree.