PARAMASOTHY v. DELGODA AND ANOTHER

040-SLLR-SLLR-1981-2-PARAMASOTHY-v.-DELGODA-AND-ANOTHER.pdf


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Paramasothy v. Delgoda and Another (Ranasinghe, J.)
489
PARAMASOTHY
v.DELGODA AND ANOTHER
COURT OF APPEAL
RANASINGHE, J., AND ATUKORALE, J
H. C. A. 138/79
D. C. JAFFNA 55/0
MAY 5 AND 7, 1981.
Writ of habeas corpus — can application for revision be combined with application for awrit of habeas corpus 7 Arrest without possession of warrant of arrest — contempt —vacation of order fixing matter for inquiry and dealing with offender before Court rises— s. 388111 of Code of Criminal Procedure Act – s. 223 of the Penal Code read withs.5511) of Judicature Act No. 2 of 1978 – s. 800fcl C.P.C. – procedure and sentence.
The petitioner was the plaintiff in a divorce case. On 13. 7. 79 his case was post-poned but his arrest and detention were ordered by the District Judge (2nd respondent)as the Police Sergeant represented to the Judge that the Magistrate had issued a warrantto arrest the petitioner. The petitioner then rushed into court and took up a squattingposition in front of the Interpreter Mudaliyar's table. The 2nd respondent warned thepetitioner that he had interrupted the court proceedings and his conduct wouldconstitute a contempt. The petitioner paid no heed to this. The 2nd respondent orderedthe Court Sergeant to remove the petitioner and remanded him. Later the same day the2nd respondent summoned the petitioner and charged him with committing contempt ofCourt under s. 223 of tr.e Pena1 CodP read wi-h s. 55111 of the Judicature Act, No. 2 of1978. The petitioner said he had cause to show and the matter was fixed for inquiry fora future date Later however on the same day the 2nd respondent before rising for theday caused the petitioner to be produced before him and after explaining that hisconduct amounted to wilful interruption of the proceedings of Court asked the peti-tioner whether he had cause to show. The petitioner said he had cause to show and madea statement but the 2nd respondent proceeded to convict the petitioner in terms of s.55(1) of the Judicature Act and sentenced him to a term of two years’ rigorous impri-sonment.
Held:
A substantive term of rigorous imprisonment upon conviction of the offence ofcontempt of court can be imposed only either under s. 55(1) of the Judicature Act or$. 800(c) of the Civil Procedure Code where the procedure set out therein is followedand the offender has had a reasonable opportunity both of showing cause and defendinghimself. If recourse is had to section 388(1) of the Code of Criminal Procedure Act todeal with an offender the same day, then the substantive sentence which can be imposedis only a fine.The sentence of imprisonment imposed on the petitioner is untenableand unwarranted in law as the procedure purported to be followed was under s. 388(1)of the Code of Criminal Procedure Act whereunder a substantive punishment of only afine was permissible. The committal of the petitioner by the 2nd respondent to thecustody of the 1st respondent was illegal.
The court will not allow habeas corpus to be used as a device for collaterallyimpeaching the correctness cf a determination by a Court of competent lurisdiction.The writ of habeas corpus will however ordinarily be issued where there is jurisdictional
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error. Where a committal is on the face of it, bad, as for instance where the sentence isillegal, a writ of habeas corpus would lie.
Once facts and circumstances, which would justify the exercise of the revisionarypowers of the court have been brought to the notice of the Court, the Court shouldthen exercise such powers notwithstanding any technical objection even if suchobjections were tenable — that an application for revision cannot be combined with anapplication for a writ Of habeas corpus.
Case referred to
(1) Thamboo v. The Superintendent of Prisons 11958) 59 hi. L R 573.Application for writ of habeas corpus and revision.
Nimal Senanayake, with Miss S. M. Senaratne, T. Kanagasabai and Tilak Balasuriya,for petitioner
C. Sittambarapillai – S. S. C. for 2nd respondent.
Cur. adv. vult
June 8,1981.
RANASINGHE, J.
The petitioner who is the plaintiff in Case No. 55/D of the DistrictCourt of Jaffna, appeared in the District Court of Jaffna on
which was the date fixed for the trial of the said case; but,as the learned District Judge, who is the 2nd Respondent did notwish to hear the said case, the 2nd Respondent had refixed thetrial for 17.8.79 in order to have another judge appointed to hearthe said trial. Thereafter, according to the Petitioner, the followingincidents took place: that, as the Petitioner was about to leave theCourt-house, the 2nd Respondent ordered a police officer onduty in the court-house, to take the Petitioner into custody statingthat there is a warrant issued by the Magistrate's Court for thearrest of the Petitioner: that the said warrant was not, at that time,with either the 2nd Respondent or the said Police Officer: that thePetitioner, stating that such arrest was illegal and constituted anabuse of the powers of the 2nd Respondent, sat down in protest:that the Petitioner was then carried bodily into the remand cell inthe Court-house by Police Officers on the orders of the 2nd Res-pondent: that thereafter the same day the Petitioner was broughtbefore the 2nd Respondent at about 4 p.m. and was asked by the2nd Respondent to show cause why the Petitioner should notbe dealt with for contempt of Court: that the Petitioner repliedthat he has not committed any such offence, and that he shouldbe served with a charge sheet and be given time to retain a lawyer
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and show cause: that the 2nd Respondent rejected the Petitioner'sapplication and imposed a sentence of two years' rigorous impri-sonment.
The 2nd Respondent's version of the incidents of 13.7.79 is:that, after the said divorce case was postponed, upon an applica-tion made by the Court Sergeant that the Petitioner, who hadbeen evading arrest upon the warrant, which had been issuedagainst the Petitioner, be detained in Court until the Court Ser-geant obtained the said warrant from the Police Station, the 2ndRespondent ordered that the Petitioner be so detained in Court:that the Petitioner, notwithstanding the said order, walked out onto the verandah of the Court-house: that, after a "discussion”had ensued between the Petitioner and the Court Sergeant, thePetitioner "suddenly rushed into the Court and took up a squat-ting position in front of the Interpreter Mudaliyar's table": thatthe 2nd Respondent then warned the Petitioner that his conductwas interrupting the proceedings of Court and constituted anact of contempt: that the Petitioner paid no heed to such warning:that, as the conduct of the Petitioner continued to obstruct theCourt proceedings, the 2nd Respondent directed the Court Ser-geant to remove the Petitioner from the Court-house and alsomade order remanding the Petitioner: that later the same day the2nd Respondent summoned the Petitioner to the open Court andcharged the Petitioner with committing the offence of contemptof Court, and called upon the Petitioner to show cause why thePetitioner should not be punished for such offence: that the Peti-tioner then made a statement which was recorded verbatim bythe 2nd Respondent: that the 2nd Respondent following the pro-cedure set out in Section 795 and the other succeeding provisionsof the Civil Procedure Code convicted the Petitioner, and passedsentence in terms of the Judicature Act, No. 2 of 1978: that thePetitioner did not make any application for time to retain a lawyerand to make further submissions.
A perusal of the proceedings of 13.7.79, recorded by the 2ndRespondent and a certified copy of which has been marked "A,"shows: that, when the Petitioner was first informed that he wasbeing charged with the offence of contempt of Court, the 2ndRespondent had, at that stage, explained to the Petitioner "thathe is now committing an offence of contempt of Court declaredpunishable under Section 223 of the Penal Code read with Section55( 1) of the Judicature Act, No. 2 of 1978: "that, when in answerto the said charge, the Petitioner stated that he wanted time toshow cause, the 2nd Respondent then fixed the matter for inquiryon 30,10.79 and made order remanding the Petitioner: that there
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is an entry made later on the same day by the 2nd Respondent tothe effect that he finds that Section 55 of the Judicature Act,No. 2 of 1978 and Section 388 (1) of the Code of Criminal Proce-dure Act, No. 15 of 1979 gave him the power to deal with thePetitioner on the same day before the Court rises for the day, andthat he (the 2nd Respondent) therefore directs that the Petitionerbe produced before him before the Court rises for the day: thatthereafter the Petitioner was produced before the 2nd Respon-dent: that the 2nd Respondent then proceeded to explain to thePetitioner that his conduct earlier in the day (as referred to above)amounted to a wilful interruption of the proceedings of the Courtand that the Petitioner has thereby committed the offence of con-tempt: that, on the Petitioner being asked whether he has anycause to show, the Petitioner had stated that he has cause to show,and had then proceeded to make a statement: that thereafterthe 2nd Respondent convicted the Petitioner in terms of Section55 of the Judicature Act and sentenced him to a term of twoyears' rigorous imprisonment: that, having done so, the 2nd Res-pondent proceeded to vacate the order made by him earlier in theday fixing the matter of the self same contempt for inquiry on30.10.79.
A consideration of the proceedings of 13.7.79 shows clearlythat, when the 2nd Respondent first decided to deal with thePetitioner for the offence of contempt, he had referred to theprovisions of Section 223 of the Penal Code and Section 55(1)of the Judicature Act, No..2 of 1978, and had, upon the Petitio-ner asking for time to show cause, taken the view that the Peti-tioner should be granted such an opportunity, and had then pro-ceeded to grant the Petitioner a period of about 3'A months forthat purpose: that the decision made subsequently by the learnedDistrict Judge the same day to vacate the aforesaid order fixingthe inquiry for 30.10.79 and to deal with the Petitioner the sameday, has been influenced, if not wholly, at least to a very greatextent, by the provisions of Section 388(1) of the Code of Crimi-nal Procedure Act, No. 15 of 1979.
Of alf the relevant provisions of law relating to the offence ofcontempt found in the Judicature Act, No. 2 of 1978, Civil Proce-dure Code (Cap. 101), and the Code of Criminal Procedure Act,No. 15 of 1979, Section 388(1) of the said Code of Criminal Pro-cedure Act seems to be the only section which provides for —even in the limited circumstances set out therein – a DistrictCourt dealing with an offender, accused of the offence of con-tempt, at any time before the rising of the Court on the same day.The provisions of this section also make it clear that, if aDistrict Court proceeds under this section, it has power to impose
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only a fine not exceeding one thousand five hundred rupees. Ithas the power to impose a term of imprisonment only as a defaultterm; and that too only for a maximum of "3 months." It has nopower to impose a substantive term of imprisonment. A substan-tive term of two years rigorous imprisonment is permissible onlyunder either Section 55{ 1) of the Judicature Act, No. 2 of 1978 orSection 800 (c) of the Civil Procedure Code. The term of twoyears' rigorous imprisonment imposed upon the Petitioner by the2nd Respondent on 13.7.79 is not, therefore, a sentence sanctio-ned by the provisions of Section 388(1) of the Criminal ProcedureCode. It is clear on a perusal of the proceedings, particularly thoseunder the heading "Eo die later," of 13.7.79, that, in deciding tovacate the order made by him earlier the same day and to dealwith the Petitioner the same day, the 2nd Respondent has purpor-ted to fall back upon the provisions of Section 388(1) of the Codeof Criminal Procedure Act, No. 15 of 1979. The 2nd Respondentseems to have had recourse first to the said Section 388( 1) to givehfim the power to deal with the Petitioner the same day before theCourt rises for the day, and then to Section 55(1) of the Judica-ture Act to impose a sentence of two years' rigorous imprison-ment; for, the 2nd Respondent states in his affidavit that hefollowed the procedure laid down in the Civil Procedure Code andthe Code of Criminal Procedure Act, and "passed sentence ofconviction in terms of the provisions of the Judicature Act, No. 2of 78." Such a procedure is not tenable and is wholly unwarran-ted. If recourse is had to the said Section 388(1) to deal with anoffender the same day, then the sentence which can be imposed isonly that which is expressly set out in the self same section. It issignificant that the substantive sentence which could be imposedwhere an offender is being dealt with the same day is only a fine.A substantive term of imprisonment could be imposed — eitherunder Section 55(1) of the Judicature Act or Section 800 of theCivil Procedure Code — only where the procedure set out thereinis followed and the offender has had a reasonable opportunityboth of showing cause and of defending himself. The only sentence imposed by the 2nd Respondent upon the Petitioner is theaforesaid term of rigorous imprisonment. No fine has been impo-sed at all. Thus the -sentence is one wholly in conflict with theprovisions of the said Section 388(1). As the procedure purportedto have been followed by the 2nd Respondent is said to be underthe said Section 388(1) both the conviction and the sentencebecame untenable in law.
As already indicated, the 2nd Respondent himself had earlierconsidered it fit and proper to grant the Petitioner some time toget ready to show cause and defend himself. There was no justifia-ble ground, in my opinion, for the 2nd Respondent to have
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vacated his earlier order and to deal with the Petitioner the sameday. Section 388(1) of the Code of Criminal Procedure Act, No.15 of 1979 cannot, as already stated, be called in aid to supportwhat the 2nd Respondent has thereafter done later the same day.The steps taken by the 2nd Respondent subsequent to his havingfixed the matter for inquiry on 30.10.1979 would, in the circums-tances of this case, undoubtedly have caused the Petitioner consi-derable degree of prejudice.
In this view of the matter, I am of opinion that the convictionof and the sentence imposed upon the Petitioner by the 2nd Res-pondent on 13.7.79 are both untenable and unwarranted in law,and that the committal of the Petitioner by the 2nd Respondentto the custody of the 1st Respondent is illegal.
The question, which now arises for consideration, is the objec-tion raised by learned State Counsel appearing for the 2nd Res-pondent that the Petitioner is not entitled to a Writ of HabeasCorpus as prayed for by him. The contention put forward in sup-port of the said objection is: that the Petitioner has been tried andconvicted by a Court competent to do so: that the warrant ofcommittal issued by the 2nd Respondent to the 1st Respondent,consequent upon the conviction, is a sufficient return to the writof habeas corpus: that, a writ of habeas corpus will not issuewhere it is being sought to be used as a means of appeal: that awrit of habeas corpus cannot be availed of to test tha validity of acommittal, or to review a judgment which could have been testedby way of an appeal, or to question the validity of an order madeby an inferior Court on a matter within its jurisdiction: that anapplication for a writ of habeas corpus cannot be combined withan application for revision.
Learned Counsel for the Petitioner submitted that he is in thisapplication canvassing the jurisdiction of the learned DistrictJudge to have proceeded to deal with the Petitioner in the way hehas done, and on the grounds set out by the learned DistrictJudge: that where such jurisdiction is being challenged the properprocedure is to come before this Court in the way the Petitionerhas done — by way of an application for a writ of Habeas Corpusand/or Revision: that, in such a situation an appeal is not theappropriate remedy.
De Smith: Judicial Review of Administrative Action (4thEdn.) at page 600, whilst discussing the scope of judicial review inhabeas corpus proceedings, notes the following points: that theCourts will not allow habeas corpus to be used as a device forcollaterally impeaching the correctness of a determination by a
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Court of competent jurisdiction: that, in general, where impri-sonment has been ordered by a Court or other judicial tribunal,habeas corpus will issue if the decision is void for want of juris-diction but not merely voidable for error: that, although thisdistinction has been broadly adhered to in respect of superiorCourts, it has often been disregarded in respect of minor tribu-nals, and habeas corpus has been awarded where a conviction ororder has b.een made without evidence although the defect was notnecessarily jurisdictional: that habeas corpus has issued whereinstruments of committal are ex facie bad, although the defectwould not ordinarily be regarded as jurisdictional.
Sinnetamby, J. in the case of Thamboo v. The Superintendentof Prisons'10* held that a write of habeas cotpus is not availableagainst an order of committal which is based on a judgment of theSupreme Court or against a committal after trial by an inferiorCourt acting within its jurisdiction. At page 574, Sinnetamby, J.stated, after a discussion of the relevant English rule:
"It will thus appear that ordinarily a writ will not be granted ifthere is a warrant of committal duly signed by a judge of theCourt. The only cases where writs have issued or wouldissue are cases in which the sentence itself is clearly illegal —for instance, where an offence is punishable only by a fine butthe Court has imposed a term of imprisonment or where theterm of imprisonment imposed exceeds the maximum provi-ded for the offence. But where otherwise the matter is withinthe jurisdiction of the Court the writ would not lie in England."
In regard to the connotation of the word "jurisdiction" in thisconnection, Sinnetamby, J. went on to state:
"The English cases make it clear that the word 'jurisdiction'relates to the question of whether the Court is empowered bylaw to try cases of the type in which the offender was triedand convicted."
In that case the learned Magistrate had in charging the accusedfollowed the procedure which was accepted at that time to be thecorrect procedure but which was later held to be not legal by aDivisional Court. The accused, when he appealed against his. conviction to the Supreme Court, did not however urge thesaid infirmity as a ground on which his conviction was challenged.After the appeal was dismissed, the Petitioner made an applicationfor a writ of habeas corpus, and Sinnetamby, J. at page 576characterised it as "precisely what the English cases condemn, as
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being tantamount to attempt to obtain a review of the case, havingfailed in the first appeal or not having appealed at all.''
A consideration of the above principles seems to show that,although ordinarily grounds for the award of a writ of habeascorpus are limited to jurisdictional errors and the writ cannot‘beused as a device for collaterally impeaching the correctness of anorder made by a Court of competent jurisdiction, yet, where acommittal is, on the face of it, had, as for instance where thesentence is illegal, a writ of habeas corpus would lie.
In this case the 2nd Respondent in his capacity as the DistrictJudge undoubtedly had the power to deal with the Petitioner forthe offence of contempt; and he also had the power, under theprovisions of the Judicature Act and the Civil Procedure Codereferred to earlier, to impose a sentence of 2 years rigorous impri-sonment, even though under the provisions of Sec. 388(1) of theCode of Criminal Procedure Act he could impose only a fine. Bethat as it may, I do not propose to consider further the questionwhether the Petitioner is or is not entitled, in the circumstances inthis case, to a writ of habeas corpus for the reason that the Peti-tioner should, in any event, be given relief by way of revision.
The powers of revision vested in this Court are set out inArticle 138 of the Constitution. Once facts and circumstances,which would justify the exercise of such revisionary powersvested in this Court, have been brought to the notice of this Court,it appears to me that this Court should then exercise such powers,notwithstanding any technical objections — even if such objectionswere tenable — that an application for revision cannot becombined with an application for a writ of habeas corpus.
As I have indicated earlier, considerable prejudice wouldcertainly have been caused to the Petitioner by the learned DistrictJudge's vacation of his earlier order giving the Petitioner time toshow cause. The ground, which seems to have been relied on bythe learned District Judge does not, as already stated, bear closeinvestigation. Furthermore, certain observations made by thelearned District Judge in the course of his order made on 13.9.79refusing the petitioner's application for bail, though made at apoint of time after the petitioner was dealt with as set out aboveon 13. 7. 79 would justifiably raise the question whether what heexpressly stated on that subsequent occasion could also have insome way influenced him in making the order he made around4 p.m. on 13. 7. 79 to vacate the order he had made earlier thatday fixing the inquiry for a later date. The 2nd Respondent hadnot stated as to when such confidential information was disclosed
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to him "under oath of secrecy". It need hardly be said that aJudge should act only upon evidence placed before him accordingto law and that material such as this should not be allowed toinfluence a judge in making a judicial order, and must not beallowed to influence him in any way to making an order adverseto the person against whom such information is disclosed. In asituation such as this the Petitioner is entitled to complain to thiscourt that he has been seriously prejudiced.
A consideration of the recorded proceedings of 13. 7. 79shows that the conduct alleged against the Petitioner if in fact is..established, the Petitioner has certainly laid himself open tocontempt proceedings being held against him.
For these reasons, I made order, in the exercise of therevisionary powers vested in this Court, setting aside not onlythe conviction of and the sentence imposed on the Petitioner bythe 2nd Respondent on 13. 7. 79, but also all the proceedingstaken against the Petitioner on ^3. 7. 79 after the order, madeearlier on 13. 7. 79, by the 2nd Respondent fixing the chargeof contempt for inquiry on 30.10.79. I direct the Distirct Judgeof Jaffna to re-fix, in the presence of the Petitioner, the matterof the charge of contempt framed against the Petitioner (andwhich had, on 13. 7. 79, been fixed for 30.10.79) for inquiry,and proceed according to the relevant provisions of law. ThePetitioner will be entitled to take whatever objections that areopen to him in law at such inquiry. In view of what has transpiredthe said inquiry should be held before a District Judge other thanthe 2nd Respondent, competent in law to hold such inquiry.
Atukorale, J. I agree.
In revision conviction and sentence and proceedings againstpetitioner set aside. Case remitted for inquiry into charge of con-tempt.