Velayuthan v. A lies
[In the Court of Appeal of Ceylon]
1972 Present: Fernando, P., Slrhnane, J., Samerawlckrame, J., andSiva Snpramanlam, J.K. VELAYUTHAN, Appellant, and The Hon. A. C. A. ALLES,Respondent
Appeal No. 0 of 1972, Privy Council Appeal No. 26 of 1971
8. C. 186/65—M. C. Nuwara Eliya, 30012Contempt of Court—Conditional order made by a court—Subsequent applicationby the party affected, or hie Proctor, to make the order unconditional—Whetherit amounts to contempt o] Court—Allegation of offence of contempt of Court—Requirement of a specific charge or a rule nisi
An Assize Judge made order on September 21, 1970, that a motor car whichwas a production in a case hoard by him earlier on August 21, 1966, should notbe delivered to the person who claimed it as owner except upon certain conditions.On November 11, 1970, a Proctor who was retained by the claimant submitteda motion to the same Judge for an order that, in view of the fact that the criminaloase had been Anally disposed of by the Court of Criminal Appeal on November
FERNANDO, P.—Vdayuthan o. Attea
12, 1066, the ear be delivered to the claimant unconditionally. Thereupon theJudge directed the Proctor to *' appear before him and support the applicationon November 22, 1970 When the Proctor duly appeared on November 22,he was forthwith called upon to show cause why he should not be dealt with forcontempt of Court. He was then found guilty of the oftenoe and sentenced topay a fine as the Judge considered that the application for an unconditioneddelivery of the car was in direct violation of the earlier conditional order madeby him and was an attempt to mislead the Court.
Held, that the application to Court to make an order different from the orderit had already made oould not be said to have been in violation of that order.The person affected by the order of September 21, 1970, could not be deniedthe opportunity of requesting the Court to vary that conditional order. Muchless could a Proctor appearing for that person and presenting a motion to Courtto the same effect be guilty of contempt of Court.
Held further, that a person should not be punished for contempt of Courtunless a charge is formulated either specifically or in the form of a rule nisi.
^.PPEAL against a conviction for contempt of Court.
D. R. P. GoonetiUeke, with U. ~D. M. Abeyesekem and SarathDissanayalce, for the appellant.
V. 8. A. PuUenayegum, Deputy Solioitor-General, with R. Abeysuriya,Crown Counsel, for the Crown.
Cur. adv. wit.
Maroh 9,1972. Fernando, P.—
The appellant, who is a proctor of the Supreme Court, had beensuccessful in obtaining from their Lordships of the Judicial Committeeof Her Majesty’s Privy Counoil special leave to appeal from a convictionentered against and a sentence of a fine of Rs. 260 imposed upon him bythe respondent who was on November 22, 1970, the presiding judge atthe Criminal Sessions of the Supreme Court for the Midland Circuit atKandy.
Before the appeal could be heard by the Judicial Committee, the Courtof Appeal Act No. 44 of 1971 came into operation on November 16,1971,and the duty of disposing of the appeal devolved on this Court in terms ofSection 19 of the said Act.
The proceedings which led to the conviction of the appellant aresomewhat unusual and we would briefly summarise them below :—
At a trial upon indictment before the Supreme Court in proceedingsnumbered S. C. 186/1965, five persons were convicted on August 21,1966 on charges of unlawful assembly and robbery and were sentencedto imprisonment. Their appeals to the Court of Criminal Appealwere dismissed on November 12, 1966.
FERNANDO, P.— Velayuthan v. Allea
When a criminal trial is concluded, it is usual for the Clerk of Assize,after appeal, if any, has been concluded, to obtain an order from thuAssize Court for the disposal of the productions remaining in the custodyof the Court itself or of the Fiscal. Two motor cars had been producedby the police in Court and were lying in the custody of the Fiscal. Thetrial Judge had made an order that both cars do remain in the custody ofthe Fiscal “ as another person concerned in the robbery is stillabsconding. ”
Upon this appeal, we are concerned only with one of the two cars. Theabsconding accused was not one of the accused who stood his trial inproceedings No. S. C. 186/1965. Indeed, the police had not beensuccessful in arresting him at all, and we are informed that he has notbeen arrested up to date. Two persons, named Raman and Seenivasagamrespectively, both claimed to be the owners of the car we are concernedwith here. Each of them made applications to the Assize Court for therelease of the car to him, and these applications were considered onDecember 12, 1968 by the then Assize Judge (Weeramantry J.) whostated that, in view of the long delay that had already occurred, it wouldbe appropriate to release the car subject to the owner entering into a bondfor the production of the car at short notice. . There were certain other,proceedings also in the Assize Court in relation to these same applications,but we need not refer to them here as they have no direct bearing on thisappeal. We need only refer to the proceedings of February 18, 1969,when the judge functioning as the Assize Judge that day made an orderthat, as there was a dispute over ownership of the car between Ramanand Seenivasagam, the car do remain in the custody of the fiscal untilone or the other,of these two persons furnishes sufficient material on whichthe Court could consider it desirable to release the car.
Seenivasagam instituted a civil action (D. C. Colombo CaseNo. 70443/M) against Raman, and was successful in obtaining an orderfrom the District Court of Colombo on August 28, 1970, that the latterdo hand over possession to him of the car, together with a Bum of Rs. 600and costs.
'On the same day, namely August 28, 1970, Seenivasagam signed amotion (witnessed by the appellant) stating that he was the owner of thecar, and annexed thereto a certified copy of the decree in the DistrictCourt case and prayed for a direction to the Fiscal to deliver the car tohim. On September 20, 1970 the respondent who was again functioningas the Assize Judge of the Midland Circuit made order as follows :—
“ The car may be delivered to Seenivasagam after the appealableperiod in D. C. 70443/M has elapsed. If an appeal is filed, delivery ofthe car will have to await the result of the appeal. When the car isdelivered to Seenivasagam, he should be directed to enter into a bondin compliance with Justice Weeramantry’s order and should be preparedto produce the car within 24 hours in Court if necessary. He shouldalso be direoted not to dispose of the car without the permission of the-Court. ”
FERNANDO, P.— Velaytuhan V. Allea
On November 11, 1970 the appellant forwarded an affidavit ofSeenivasagam made the same day and, as proctor for Seenivasagam,moved for an order that “ the car be delivered to Seenivasagamunconditionally” as the above criminal case “has been finally disposedof by Your Lordships’ Court, ” On receipt of these papers, the respondentdirected the appellant to “ appear before him and support the applicationon November 22, 1970. ” A copy of the notice to the appellant wasalso sent to Seenivasagam requesting him to appear in Court on thesame date.
The appellant duly appeared on November 22, 1970, and the recordreads that Mr. S. N. Rajadurai instructed by the appellant appeared insupport of the application for the release of the car. In answer to therespondent’s question whether the application was for an unconditionalhanding over of the car, counsel replied in the affirmative. Therespondent then inquired whether that was not in direct violation of theorder of the Court. He added that the order was quite clear and inquiredwhether any cause can be shown why the person who submitted theapplication should not be dealt with for contempt of Court. Counselstated that the appellant meant no disrespect to Court; but, on thequestion whether the application was not in direct violation of the orderof Court being repeated, answered that it was. Notwithstanding thisanswer of Counsel, we entertain some difficulty in understanding howan application to Court to make an order different from the order ithas already made can be said to be in violation of that order.
The learned Judge appears to have considered that the motion presentedby the appellant contained two “mis-statements”. One of the allegedmis-statements, to use the learned Judge’s own words, was the expression*■ to order the Deputy Fiscal to deliver the. said car unconditionally. ”
' .’he other was allegedly constituted when the motion recited that thecase had been finally disposed of.
Averments to the same effect as the alleged mis-statements are to befound in the affidavit of Seenivasagam, and the appellant, in embodyingthese averments in the motion he had. to present to Court, was doingnothing more than relying on his client’s affidavit. When Seenivasagamand his proctor the appellant moved the Court “ to be pleased to orderthat the car be delivered unconditionally ” they were both doingsomething they were entitled in law to do, namely, to move that theCourt do vary its order of September 20, 1970. The learned Judgeappears to have considered that an attempt to obtain an unconditional■ delivery of the car was an attempt to mislead the Court.
An intentional misleading of a Court, particularly by a proctor, whois an officer, thereof, whereby the Court may be led into making an orderwhich it would not have made but for such a misleading may, no doubtin certain circumstances, be dealt with as a contempt of. Court. In anapplication made to the High Court of Allahabad for revision of an orderof a Sessions Judge, the accused represented that they were in jail and
FERNANDO, P.—Ve'.iyuthan v. Alice
moved that they be released oa bail. The Court reduced the punishmentto the sentence of imprisonment already undergone, whereas in faot theaccused had been on bail throughout except for one day. The Courtheld that the accused were guilty of contempt of Court inasmuch asthey made misrepresentations which misled the Court into believingthat they were in jail even at the time of the application. See MumXaz v.Chhvlwa *.
In the case before us, the appellant was inviting the Court to makean unconditional order. That was in direct response to the order of Courtdated September 21, 1970. The Court was aware that the order madeby it was one subject to a condition. A person affected by the ordercannot be denied the opportunity of requesting the Court to vary thatconditional order. He is certainly not guilty of a contempt of Court indoing so. Much less can a proctor appearing for that person andpresenting a motion to Court to the same effect be guilty of contempt.In regard to the second “ mis-statement ”, the criminal case referred toboth in the appellant’s motion and in Seenivasagam’s affidavit was acase that had been tried on indictment and concluded. That case wasfinally disposed of when the appeals made to the Court of Criminal Appealwere dismissed. The statement was therefore technically aocurate.
The order made by the Judge on September 21, 1970 did contain areference to Seenivasagam entering into a bond to ensure production ofthe car in Court at short notice. The appellant stated to Court that,when, he signed the motion to Court, he was not aware that any furthercriminal proceedings were contemplated. He relied on the averments inSeenivasagam’s affidavit. It is unnecessary to consider whether he shouldhimself have verified the accuracy of his client’s averments. We do notthink any kind of a deception of the Court was in the mind of the appellant.The motion was presented to the very judge who had made the conditionalorder. Moreover, it was indeed the same judge who had presided at thetrial.
We were satisfied at the hearing of the appeal that the conviction of theappellant for the offence of contempt of Court could not be sustained,and we made order at its conclusion setting aside the conviotion andsentence, stating that our reasons for our order would be set down later.While we have set out those reasons above, we would like to add that noperson should be punished for contempt of Court, which is a criminaloffence, unless the speoifio offence be distinctly Btated and an opportunityof answering it be given to him.—See In re PoUard *.
1 A. I. R. (1940) AU. 380.
(1868) L.R. A. O. (P. O.) 106.
Ptrera v. Banneheke
In the proceedings reviewed by us, no attempt was made to formulate'a charge either specifically or in the form of a rule nisi. Indeed, therappellant came to Court upon a notice to him on a direction of the learnedJudge to Bupport the application for an order that the car be deliveredunconditionally. When he appeared, he was not called upon to supportthe application but was forthwith called upon to show cause why he shouldnot be dealt with for contempt of Court. If it had been the intention ofCourt to deal with any question of contempt of Court, it would havebeen more appropriate to have served a rule m on the appellant. Hadthat course of action been pursued, the ingredients of the offence ofcontempt of Court would ht»/e been prominent in the minds of all-concemed, and we venture to think that a conviction of the appellantmay not even have resulted.
K. VELAYUTHAN, Appellant, and The Hon. A. C. A. ALLES, Respondent