058-NLR-NLR-V-18-KIRIBANDA-v.-TIRUAMBALAM.pdf
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Present: Wood Benton C.J. and Ennis J.
1915.
KlitIBANDA v. TIRUAMBALAM.
"J? and 408—Z C. Hatton, 9,004
C;r4er to pay compensation—Criminal Procedure Code, s. 487—Complain-ant must be called upon to show cause against the order.
Before a complainant- is ordered to pay compensation undersection 437 of the Criminal Procedure Code he ought to have anopportunity of showing cause against – it.
rn HE complainant, a Fiscal's officer, charged the accused with
± voluntarily obstructing him, a public servant, in the dis-charge of his public function; intentionally offering resistance tothe lawful apprehension of one Andy, under a warrant issued incase No. 7,214 of the Police Court of Badulla, for the offence ofquitting service without notice, and rescuing the said Andy fromhis custody, in which he was being lawfully detained for the saidoffence; and vlorntarily causing hurt to him—offences punishableunder sections 123, 220, ancf 314 of the Ceylon Penal Code. Awarrant was issued, and the accused was arrested on it. The PoliceMagistrate (T. A. Bodson, Esq.) on April 13, 1915, acquitted theaccused, and ordered the complainant to pay Bs. 25 to accusedunder section 437 of the Criminal Procedure Code.,
The complainant appealed against this order and, with thesanction of the Attorney-General, against the acquittal of theaccused.
The appeal against the order under section 437 of the CriminalProcedure Code came up before Wood Benton C.J. sitting aloneon May 21, 1915, and owing to certain conflicting decisions of theSupreme Court on the point it was referred by him to a Bench ofvwo Judges.
Tisseveresrnghe, for complainant, appellant.—Section 437 ofthe Criminal Procedure Code does not apply to a case where theaccused has been arrested by a police officer on a warrant issued
T
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IMS.by a competent Court. In such a case it cannot be said that ** com-
Kiribanda pkinant oause the peace officer to arrest the accused ’* within«. Tintam- the meaning Of section 437. The peace officer acted under theftnlam warrant. It clearly would not apply to a case where the arrestwas made by any other person than a peace officer, and a warrantneed not necessarily he directed to a peace officer (section 52 (2),Criminal Procedure Code).
A. person should not be punished without beiug heard in hisdefence. Tidorisa v. Garolis
It cannot be argued, from the mere absence in section 437 of aprovision similar .to the one in section 197, that an order to paycompensation can be made under section 437 without calling uponthe complainant to show cause against it. Gnnasehera v. DinesAppu' uud Deonis v. Gemem 9 have not been rightly decided. Anelementary right like this can only be taken away by expressenactment to the contrary. Middleton J. was personally of opinionin Deonis v. Gemem 3 that Tidorisa v. Garolis 1 was rightly decided,though he followed the later decision.
Iu section 440 of the Code there is no provision as in section 197
, but the person charged is always Galled upon to show causebefore being punished under that section (Koch 50). See CircularNo. 4 of January 13. 1908, referred to in Balasingham's Digest,1895-1903, p. 294. Section 12 of Ordinance No. 9 of 1895 has noprovision as in section 197 of the Criminal Procedure Code, butthe person charged has, nevertheless, to be called upon to showcause before he is punished. (3 N. L. R. 63, 2 N. L. R. 74.)
The charge amounts to a contempt of Court*, 3nd in all cases ofcontempt the person charged must be heard in defence.
No appearance for respondent.
May 25, 1915. Yooi> Rextox C.J.—
This is an appeal by the complainant, who has been ordered bythe Police Magistrate to pay Us. 25 as compensation to the respond-ent, for having groundlessly caused bis arrest on a criminal charge.The case came before me sitting alone on the 21st instant, and Ireferred it to n Bench of two Judges because of the conflictingdecisions on the question whether before such an order is madethe complainant is entitled to have an opportunity of showingcause against it. T}iis question was answered in the affirmativeby Browne J. iu Tidorisa v. Garolis l. But his decision wasdissented from by Sir Charles L&yard C.J. in Gunaselera v. DinesAppn2. and by Sir John Middleton J. in Deonk v. Gemeris *.1 confess .that, apart from authority, I should have had no hesita-tion in accepting the view of Browne J.. in Tidorisa v. Carolis *.
1 {1900) 4 N. L. R. 394.2 (iuor>) U Bal 09.
a (1907) 1 A. C. /{., S«p. IV.
( 21S )Compensation awarded under section 487 is to be recovered asif it were a fine, and if it cannot be so recovered, the personby whom it is payable is to be sentenced to simple imprisonment.Proceedings of this character are at least guosi-criminal, and itseems to me to be an elementary principle of justice that the personagainst whom they are taken should have the chance of being h6ardin his own defeuce. The decisions in Chaiasekera v. Dines Appu 1and Deonis v. Gemeris 2 turn on. the fact that sectiou 437, unlikesection 197 (8), of the Criminal Procedure Code contains no pro-vision for a complainant, against whom the former is being enforced,being called upon to show cause. But the same observation appliesto section 440 of the Criminal Procedure Code, under which awitness, who is charged with having given false evidence in ajudicial proceeding, has an undoubted right to show cause beforelie is puuished. See Chang Hang Kin v. Piggott *. It* seems to methat unless such au enactment as we have here to deal withdispenses with the necessity of calling upon the person charged forhis defence, he has a right to he heard before any order adverse tohim can be made. I would set aside the order appealed againsteinvpliciter, There is no need to consider any of the other pointsraised in the case.
Exnis J.—I entirely agree, and have nothing to add.
Set aside.
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1915.
Wooi>
Rjsntok O.J.
Kiribandav* Tirumn-balavi