033-SLLR-SLLR-1999-V-1-NEIL-FERNANDO-v.-RANJITH-COORAY-AND-OTHERS.pdf
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Neil Fernando v. Ranjith Cooray and Others
281
NEIL FERNANDO
v.RANJITH COORAY AND OTHERS
SUPREME COURT
P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J. ANDGUNASEKERA, J.
S.C. APPEAL NO. 46/97
C. NO. 639/96
MC KALUTARA NO. 51054/95JULY 24, SEPTEMBER 7, 21, 23, 1998
Appeal – Abatement of nuisance – Sections 98 (1) and 101 of the Code of CriminalProcedure Act – Order of the Magistrate under section 101 of the Act – Rightof appeal from such order – Section 320 (1) of the Act – Appeal to the HighCourt – Section 4 of Act, No. 19 of 1990.
The appellant was a funeral undertaker who in the course of his business hadto embalm corpses. The respondents made a report to the Magistrate in termsof section 98 (1) of the Code of Criminal Procedure Act to the effect that theappellant's business had caused pollution and environmental hazards. The Magistrateafter due inquiry made an order under section 101 of the Act directing theappellant that he may carry on his business subject to certain conditions issuedby the Deputy Director of the National Health Institute for ensuring that suchbusiness would not pollute the environment or cause a public nuisance. Therespondents appealed to the High Court in terms of section 320 (1) of the Codeof Criminal Procedure Act read with section 4 of the High Court of the Provinces(Special Provisions) Act, No. 19 of 1990. The High Court held that there wasno right of appeal but acting in revision, set aside the order of the Magistrate.
Held:
There is a right of appeal to the High Court from the order of the Magistratemade in terms of section 101 of the Code of Criminal Procedure Act.
In an inquiry under section 101 of the Act the Magistrate is not bound tohear oral evidence. He may base his order on affidavits which is permittedby section 415 of the Act.
The High court erred in taking into account extraneous matters notsupported by evidence to set aside the order of the Magistrate.
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Cases referred to:
Bakmeewewa, Authorized Officer of the People's Bank v. Konarage Raja(1989)1 Sri LR 231.
Forrest v. Leefe – 13 NLR 119.
Saram v. Seneviratne – 21 NLR 190.
Sandarasegara v. Sinnatamby – 25 NLR 139.
Nair v. Costa – 28 NLR 385.
Greena Fernando v. Teckla Saparamadu – (1990) 1 Sri LR 270.APPEAL from the judgment of the High Court.
Faiz Musthapha, PC with Gaston Jayakody for the appellant.
Mohan Peiris with Ms. Nuwanthi Dias for the respondents.
Cur. adv. vult.
January 14, 1999.
GUNASEKERA, J.
The complainant petitioners-respondents filed a report marked *P1 ‘before the Magistrate, Kalutara, dated 3.4.95 under the provisions ofsection 98 (1) of the Code of Criminal Procedure Act intimating thatthe respondent-respondent-appellant who has been carrying on busi-ness as a funeral undertaker at premises bearing Nos. 451 & 453,Galle Road, Kalutara, under the name and style of "Mahinda Florists"was committing a public nuisance by channelling impure and contami-nated water utilised for the purpose of washing cadavers in theprocess of embalming and from permitting noxious vapours of formalinto emanate into the atmosphere thus contaminating the air which wasdetrimental to the health of the complainants and the other membersof the public and sought an Order to prevent the commission of thesaid nuisance. The learned Magistrate after considering the report onbeing satisfied prima facie that the said acts complained of by thecomplainants by reason of their being injurious to the health of thecommunity made a conditional Order prohibiting the respondentpetitioner- appellant from embalming and discharging the contaminatedwater to the drain on the main road till 25.4.95 (vide 'P2').
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Neil Fernando v. Ran/ith Cooray and Others (Gunasekera, J.)283
On 6.4.95 the respondent-appellant filed a statement of objectionstogether with an affidavit and the documents marked V1 to V11 interms of section 98 (2) of the Code of Criminal Procedure Act andfor the reasons stated therein moved that the conditional Ordermade by the Magistrate be set aside. After hearing counsel for therespondent-appellant the learned Magistrate suspended the conditionalOrder 'P2' made on 3.4.95 and since the complainants were absent,directed that the complainants should appear in Court on 25.4.95. Onthat day after hearing submissions made by counsel on behalf ofboth parties the learned Magistrate reserved his Order. By Order 'P5'dated 18.5.95 the learned Magistrate set aside the conditionalOrder made on 3.4.95 and made order permitting the respondent-appellant to carry on the function of embalming at the said premisessubject to the conditions set out in letter V5 dated 31.1.87 issuedby the Deputy Director (Field Services) of the National Health Institute.The conditions being:
that the respondent-appellant should ensure that contami-nated water in washing dead bodies and cadavers shouldnot be permitted to flow on to the drain on the main roadand
that the parts removed from the cadavers in the process ofembalming should be systematically disposed of.
Aggrieved by this Order of the learned Magistrate the complainantsrespondent-respondents preferred an appeal to the High Court of theWestern Province holden at Kalutara in terms of section 320 (1) ofthe Code of Criminal Procedure Act read with section 4 of the HighCourt of the Provinces (Special Provisions) Act No. 19 of 1990. Thisappeal so filed was transferred to Panadura and from there to Colombo.After a consideration of the submissions made by Counsel on behalfof the parties the learned High Court Judge of the Western Provinceby his judgment 'P7' dated 29.10.96 acting in revision set aside theOrders made on 6.4.95 & 18.5.95 and restored the conditional Ordermade on 3.4.95.
It is against the said Order of the learned High Court Judge thatthe respondent-appellant made an application for Special Leave to
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appeal. Upon a consideration of the submissions made, this Courtby its Order dated 1.4.97 granted Special Leave to appeal on thefollowing questions only :
Does the judgment of the High Court represent an unwar-ranted interference with the Order of the Magistrate's Court.
Is there a right of appeal to the High Court from the saidOrder.
I think it would be pertinent to deal with the 2nd question on whichSpecial Leave to Appeal was allowed before considering the 1stquestion raised. In considering the question as to whether there isa right of appeal to the High Court from an Order made by a Magistratein terms of section 101 of the Code of Criminal Procedure Act onehas necessarily to consider the provisions relating to appeals fromthe Magistrate's Court which are set out in chapter XXVIII of the Codeof Criminal Procedure Act specially sections 316 to 320. Section 316states "that an appeal shall not lie from any judgment or Order ofa criminal court except as provided for by this code or by any otherlaw for the time being in force". A right of appeal is provided for insection 320 (1) which states that "subject to the provisions ofsections 317, 318 & 319 any person who shall be dissatisfied withany judgment or final order pronounced by any Magistrate’sCourt in a criminal case or matter to which he is a party may preferan appeal to the Court of Appeal (now to the High Court, after the13th Amendment to the Constitution) against such judgment for anyerror in law or in fact. . .''
An examination of this provision clearly shows that the rightof appeal is restricted to any judgment or final order pronounced byany Magistrate's Court in a criminal case or matter. The. question fordetermination then is as to whether an Order made under section101 of the Code of Criminal Procedure Act can be said to be a finalorder made in a criminal case or matter?
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Neil Fernando v. Ranjith Cooray and Others (Gunasekera, J.)285
It was the contention of Mr. Mustapha learned President's Counselwho appeared for the appellant that chapter IX of the Code of CriminalProcedure Act which dealt with public nuisances vested a specialjurisdiction in the Magistrate's Court as distinguished from its ordinarycriminal jurisdiction and therefore an Order made under this chapterwould not attract the general right of appeal set out in section 320(1) as that section applies only to orders made in the exercise of theordinary criminal jurisdiction of the Magistrate's Court. Learned Presi-dent's Counsel cited the case of Bakmeewewa, Authorised Officer ofthe People's Bank v. Konarage Rajaf11 in support of this contention.
In the said case a previous owner of certain premises applied tothe People's Bank for redemption of his land under provisions of theFinance Act, No. 11 of 1963 as amended by the Finance and CeylonState Mortgage Bank (Amendment) Law No. 16 of 1973. After inquirythe People's Bank determined that the premises should be acquiredand upon a vesting Order made by the Finance Minister under section72 (2) the premises vested absolutely in the Bank free from allencumbrances. The appellant being the Authorised Officer of thePeople's Bank being unable to obtain possession of the premisesapplied to the District Court under section 72 (7) for an order fordelivery of possession by way of summary procedure under chapter24 of the Civil Procedure Code as stipulated by section 72 (8).Accordingly, the District Court entered an order nisi and despite theobjections of the respondent entered order absolute on 28.11.83. Therespondent appealed and pending the appeal the Bank's AuthorisedOfficer moved for execution. The respondent filed papers for a stayof execution under section 763 (2) of the Civil Procedure Code. TheDistrict Judge on 30.7.84 rejected the application for stay of executionholding (a) that there was no right of appeal and (b) that the orderfor delivery of possession was not a final order and that leave to appealhad not been obtained.
In appeal the Court of Appeal set aside the order of the DistrictJudge and directed him to hear the application for stay of execution.An appeal was taken to the Supreme Court and it was held by the
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Supreme Court that the jurisdiction exercised by the District Courtunder sections 72 (7) and (8) of the Finance Act as amended is aspecial jurisdiction and that there is no right of appeal from an ordermade in the exercise of such jurisdiction unless a right of appeal isexpressly provided for in the Act. Hence the District Court had nojurisdiction to entertain an application for stay of execution pendingappeal under section 763 (2) of the Civil Procedure Code.
I am unable to agree with the contentions of learned President'sCounsel that sections 98 to 105 of the Code of Criminal ProcedureAct confers a special jurisdiction to a Magistrate's Court which is suijuris. In my view these sections provide for a summary procedure tobe adopted by a Magistrate's Court for the removal or abatement ofnuisances and the provisions relating to appeals in chapter 28 shouldbe applicable in regard to these sections as well. Anexamination of section 261 of the Penal Code shows that a publicnuisance is considered to be an offence entailing penal consequencesand in my view an order made under section 101 of theCode of Criminal Procedure Act is an appealable order attracting theprovisions of section 320 of the said Code.
The question as to whether an appeal lies against an order madeunder section 109 of the Criminal Procedure Code which is identicalin terms to the provisions in 101 of the Code of Criminal ProcedureAct came up for consideration in the case of Forrest v. LeefeP'. Inthe said case the Magistrate made a conditional order under section105 of the Criminal Procedure Code (which is identical in terms tosection 98 of the Code of Criminal Procedure Act), requiring theappellant to forthwith remove his cooperage from the vicinity of theMagistrate's Court at Galle or to appear and show cause as to whythe order should be modified or set aside. The appellant duly appearedand showed cause, evidence was taken and the Magistrate afterhearing the appellant and the complainant made the order absolute.An appeal was taken against the order made, making the conditionalorder absolute under section 109. The respondent's counsel took apreliminary objection that no appeal lies. After considering thearguments of counsel Hutchinson, CJ. with Middleton, J. agreeing
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Neil Fernando v. Ranjith Cooray and Others (Gunasekera. J.)287
overruled the preliminary objection and held that an appeal liesagainst an order absolute made under section 109 of the CriminalProcedure Code.
In the course of the judgment His Lordship the Chief Justice statedthat : “the judgment pronounced by the Magistrate in this case dealtwith the evidence, decided that the appellant's cooperage was a publicnuisance, and decided against his plea of right to continue it, andordered him to remove it; it did in fact dispose of all the questionsin dispute, and all that remained to be done was to enforce the orderand . . . also to punish the appellant if he disobeyed it. I neverthelessthink that this is an appeal against a judgment. The Magistrate heardevidence, dealt with it and decided all the questions on law and factwhich were raised, and thereupon made an order in accordance withhis findings. In ordinary language he gave judgment; his statementof reasons and his findings and his order constitute his judgment.
I think, therefore, that the preliminary objection should be overruled".
Middleton, J. in the course of his judgment stated as follows : Thefirst point in this case was whether an appeal would lie, it beingcontended for the respondent that the order was not a final one. Thequestion as to whether it was a judgment was not referred to in theargument. It is clear I think that the decision appealed from is ajudgment within the meaning of section 306 (1) of the CriminalProcedure Code. It becomes, therefore, appealable under section 338of the Criminal Procedure Code.
For the reasons stated I hold that there is a right of appeal tothe High Court from the order marked 'P5‘ dated 18.5.95 of the learnedMagistrate made in terms of section 101 of the Code of CriminalProcedure Act.
The following cases, Saram v. Seneviratne(3), Sandrasegara v.Sinnatamby*4', Nair v. Costal5' are some of the cases in which appealshad been preferred against orders made under 109 of the CriminalProcedure Code and the case of Greena Fernando v. Teckla
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SaparamadU® is one in which an appeal had been taken in respectof an order that have been made under section 101 of the Code ofCriminal Procedure Act.
The other question that remains for determination is as to whetherthe judgment of the High Court represents an unwarranted interferencewith the order of the Magistrate's Court.
It was submitted by learned counsel for the appellant that thelearned High Court Judge having wrongly held that there was a rightof appeal from the Magistrate's Order which was sought to beimpugned inexplicably purported to act in revision to set aside theOrder of the learned Magistrate made in terms of section 101. It isthe contention of the learned counsel that the learned High CourtJudge erred in interfering with the Order made by the Magistrateinasmuch as no circumstances exists for such intervention and it isbased on a misconception of the facts and the law. According to theappellant the conditional Order 'P2‘ made on 3.4.95 by the learnedMagistrate was consequent upon a consideration of the report marked'P11 filed before him unsupported by any affidavit.
It was contended that the appellant as permitted by section98 (2) appeared before the learned Magistrate and moved to havethe conditional Order set aside having filed a statement of objections'P3' along with his affidavit together with documents 0 1 to 0 11 andsince the complainants were absent that the learned Magistratetemporarily suspended the conditional Order made on 3.4.95 afterhearing submissions of counsel made on his behalf and directed thecomplainant to be present on 25.4.95. On that day after a considerationof the objections filed and the contents of the supporting affidavit ofthe appellant and the documents furnished in support thereof and thesubmissions made by the counsel for the parties reserved his orderand by his order 'P5' dated 18.5.95 the learned Magistrate set asidethe conditional Order and made order permitting the appellant tocontinue with his business subject to the conditions set out in £3 5.
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Neil Fernando v. Ranjith Cooray and Others (Gunasekera, J.)289
It was submitted that the learned High Court Judge erred in lawwhen he set aside the Order of the learned Magistrate dated 18.5.95on the basis that there was no evidence before the Magistrate forhis consideration for him to have set aside the conditional Order. Itis contended by learned counsel that the affidavit filed by therespondent-appellant along with his statement of objections 'P3'constituted evidence which had been acted upon by the learnedMagistrate to have varied the conditional Order made in terms ofsection 98 (1) and relied on the provisions of section 415 of the Codeof Criminal Procedure Act which authorised the learned Magistrateto have acted upon the said affidavit.
The learned High Court Judge in his judgment at page 19 appearsto have taken the view that when section 101 of the Code "requiresthe Magistrate to take evidence in the matter" that the evidenceshould be oral evidence which should be recorded in the manner setout in section 273 of the Code of Criminal Procedure Act where theevidence of each witness should be taken down in writing by the Judgeor in his presence or hearing or under his personal direction orsupervision which had not been complied with by the Magistrate andfor that reason holds that the Order made on 18.5.95 was not incompliance with the law.
An examination of the Order dated 18.5.95 marked ‘P51 which wassought to be impugned before the High Court indicates that the learnedMagistrate had in fact considered the statement of objections and theevidence of the respondent-appellant produced by way of hissupporting affidavit to vary the conditional Order.
This being so I am of the view that there has been sufficientcompliance with the provisions of section 101 of the Code of CriminalProcedure Act.
It was further submitted by learned counsel for the appellant thatthe learned Judge of the High Court has adverted to matters thatwere never in evidence before him when he set aside the Order of
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the learned Magistrate and was in grave error in taking intoconsideration extraneous matters. Learned counsel drew ourattention to page 15 of the judgment where the learned High CourtJudge observed as follows:
“I am unable to accept that there is a system where arterialembalming can be done by the use of a syringe only withoutremoving the brain, the lungs, the heart, the stomach, and theintestines, for ordinarily these organs are removed and swabs ofcotton wool dipped in formalin is placed in the cavity and is suturedand if the said organs are not removed the body begins to stink."
I have perused the brief carefully and find that there is no evidenceon record to support the above findings of the learned High CourtJudge and therefore I agree with the contention of the learned counselthat the learned High Court Judge had erred in taking into accountextraneous matters to set aside the Order of the learned Magistrateand the consideration of these extraneous matters in my view,constitutes an unwarranted interference with the Order of the learnedMagistrate.
For the reasons stated I am of the view that the judgment of thelearned High Court Judge should be set aside. Accordingly, I allowthe appeal and set aside the judgment of the learned High Court Judgedated 29.10.96 without costs and affirm the Order of the learnedMagistrate 'P5' dated 18.5.95.
I may add this judgment should not be considered to be a barto the respondent to pursue with his action L3464 already pendingin the District Court of Kalutara.
DE SILVA, CJ. – I agree.WADUGODAPITIYA, J. – I agree.
Appeal allowed.