2r£. X. G. 1('15Ft N AN ID O, J.—Piris v. Chairman, V. C.
1960Present: H. N. G. Fernando, J.
P. G. PIRIS (Ex-Chairman, Village Committee) Appellant, andCHAIRMAN, VILLAGE COMMITTEE (Medasiya Pattu,
S. C. 29—M. C. Matale, 6179
Village Committee—Money certified by Auditor-General as due to Committee froma person—Default of payment—Jurisdiction of a Magistrate to impose sentenceof imprisonment— Village Communities Ordinance (Cap. IDS), s. 54.—CriminalProcedure Code, s. 312 (1) and (2)—Income 'Pose Ordinance, s. SO.
Wlxon tho Auclitor-Gonoral issues a cortificato under section. 54 of the VillageCommunities Ordinance that a sum of money is duo from a porson to a VillageCommittee, a Magistrate has no power to impose a term of imprisonment indefault of payment of tho certified amount.
Appeal from a judgment of the Magistrate’s Court, Matale.
li. S. R. Coomarasivamy, with E. JB. Vdnnitavnby, for accused-appcllant.
B. V ikramanayake, Q.C., with S. B. Yatawara, for complainant-respondent.
Cur. adv. vult.
October 17, 1960. H. N. G. Fernando, J.—
The appellant was formerly the Chairman of a Village Committee,and has become liable to make good to the Committee certain sumswhich had been expended out of the funds of the Committee withoutdue authority or which had not been duly brought to account or creditedto the Village Fund. The Auditor-General issued a certificate underSection 54 of tho Village Communitees Ordinance (Cap. 198) that a totalamount of Rs. 4,123*89 is due to the Committee from the appellant.The Section provides that, upon the filing of the certificate in a Magis-trate’s Court, the amount therein specified shall bo recovered in the samemanner as a fine imposed by the Court. When the certificate was filedin the Magistrate’s Court, the Magistrate issued a distress warrant forthe seizure of movable property of the appellant, but the warrant wasreturned unexecuted with a report.that he was not possessed of propertyavailable for seizure. Thereafter the Magistrate made order, whichis now the subject of appeal, sentencing the appellant to a term of fourmonths’ imprisonment for his failure to pay the certified amount.
The Magistrate relied on my unreported judgment in Herath v.Munasinghe. 1 when he overruled the objection that he had no power
1 <S. C. 034, M. C. ICegalle 16388, S. C. Minutes of 27th August, 1957.
H. 2ST. G. FERNANDO, J.—Piria v. Chairman, V. C.
to impose a term of imprisonment in default of payment of the certifiedamount. I have there held in identical circumstances that a defaultterm of imprisonment may be imposed, and that sub-section (1) (e) ofthe Criminal Procedure Code would determine the length of the termin such a case. While it is disappointing to realize that my judgmentwas erroneous, I welcome the opportunity now given me to employ thelanguage of Baron Bramwell in a similar situation : “ The matter doesnot appear to me now as it appears to have appeared to me before
The relevant provision in Section 54 of the Village Communitees Ordi-nance is that “ the sum so certified, may on application to a Magistrate,he recovered in the same manner as a fine imposed by -the Magistrate''.Sub-section (2) of Section 312 of the Criminal Procedure Code is undoubt-edly brought into application thereby, for the issue of a distress warrantagainst movable property is the means provided for the recovery offines imposed by a Magistrate. But the power conferred by sub-section (1)to impose a sentence of imprisonment in default of payment of afine is not a means of recovering the amount of a fine ; it is a power topunish a convicted person by imprisonment in the event that the amountof the fine may not in fact be paid or recovered by distress. UnderSection 312 (1) (6), “in the case of an offence …. punishablewith fine only, the Court passing the sentence may direct BY THE SEN-TENCE that in default of payment of the fine the offender shall sufferimprisonment for a certain term ….” It is clear that this power
is part of the jurisdiction of the Court, as the Court of trial, to punish aconvicted offender by its sentence, and that in exercising that powerthe Court is not acting as a Court of Execution. The discretion to imposea default sentence can be exercised by a Magistrate only when he ispassing the sentence in a trial, and cannot be exercised at the stagewhen a distress warrant has failed to achieve the purpose of recoveringthe amount of the fine. If a Magistrate cannot in his ordinary j urisdictiondecide to impose a fine at that stage, it follows that he cannot so decidein a case where a special jurisdiction is conferred on him only for thepurpose of the recovery of some amount due to some other authority.
There is not, in Section 54 of the Village Communitees Ordinance, suchexpress provision as is contained in Section 80 of the Income Tax Ordinance,empowering a Magistrate to impose a sentence of imprisonment in theexercise of the jurisdiction to enforce the recovery of a sum certifiedto be due to a Village Committee. I am in agreement with the opinionexpressed in a similar connection by Pulle, J. (Thambipillai v. ManmunaiSouth & Eruvil Co-operative Agricultural Production and Sales Society,Ltdx), and my own unreported judgment should not be followed.
The sentence of imprisonment passed against the appellant is quashed.
Sentence of imprisonment quashed.
1 (1953) 55 A'. L. R. 284.
P. G. PIRIS (Ex-Chairman, Village Committee) Appellant, and CHAIRMAN, VILLAGE