RUBERTAPPUHAMY v. KESBEWA PRADESIYA SABAWA AND OTHERS

001-SLLR-SLLR-2007-V-1-RUBERTAPPUHAMY-v.-KESBEWA-PRADESIYA-SABAWA-AND-OTHERS.pdf



Rubert Appuhamy v Kesbewa Pradeshiya Sabawa and others
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CA
RUBERT APPUHAMYv
KESBEWA PRADESHIYA SABAWA AND OTHERS
COURT OF APPEALSALAM, J.
CA 1396/06DC PANADURA 853/PAPRIL, 24, 2007
Civil Procedure Code – S797, S798, Contempt of Court – Accused acquitted- Complainant appeals – Is the written sanction of the Attorney-Generalrequired? – Criminal Procedure Code – 15 of 1979 – S318, S355Administration of Justice Law – Act 44 of 1973, No. 22 of 1975 – S316,S356, S664, S667 – Compared – Should S318 of the Criminal ProcedureCode be isolated from S798?
The respondent-respondent-accused was charged in the District Court forContempt of Court under S797 of the Civil Procedure Code. The respondentswere acquitted after inquiry. The appellant, who is the 3rd defendant and thevirtual complainant appealed to have the order of acquittal set aside. Theaccused raised the objection that no appeal shall be lodged against anacquittal except with the written sanction of the Attorney-General and as thewritten consent of the Attorney-General has not been obtained the appealshould be rejected in limine.
Held:
The substantive law and procedure relating to appeals againstacquittals and convictions on charges of Contempt of Court wasidentical to the law presently in force, at least from 1898 and wasremarkably uniform and significantly consistent, for a period of overa century.
It has to be borne in mind that the procedure applicable at any givenperiod, regulating the appeals arising out of contempt of DistrictCourt was constantly the Criminal Procedure of the point of time.
The question for determination, whether the entire chapter dealingwith 'appeals' from Magistrates Court would apply in this case or
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whether it applies in the exclusion of S318, that deals with therequirement of having to obtain the written sanction of the Attorney-General • S318 of the Code is incapable of being isolated fromS798 of the Civil Procedure Code and should be strictly followedjnutatis mutandis in respect of appeals against acquittals recordedby a District Judge.
APPEAL from an order of acquittal from the District Court of Panaduraexercising civil jurisdiction, on a preliminary objection raised.
Cases referred to:
Thuraisingham v Karthikesu- 50 NLR 570
King v Chandradasa – 1923 – TLR 166
K.D. Abilin v K.D. Davith Singho – 58 NLR 566
Rohan Sahabandu with Ms. Amal Weerasinghe de Silva for 3rd defendant-appellant.
Athula Bandara with S. Godagama for accused-respondent.
Cur. adv. vult.
May 21,2007ABDUL SALAM, J.
Order on the preliminary objection01
The respondent-respondents accused (hereinafter sometimescalled as the accused) who stood charged in the District Court forContempt of Court under section 797 of the Civil Procedure Code,were acquitted, after inquiry. The appellant,, who is the 3rddefendant and the party who set the contempt proceedings inmotion, in the original Court, has preferred this appeal to have theorder of acquittal set aside.
The accused, inter alia, raised the objection that no appealshall lie against such an acquittal, except with the written sanction 10of the Attorney-General. The appellant took up the stand, that nowritten sanction of the Attorney-General is required, to exercise theright of appeal, to challenge the propriety of the order of acquittal.Admittedly, the appellant has not obtained any such writtensanction, prior to the filing of the petition of appeal or at any time
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thereafter. The question that arises for determination is themaintainability of an appeal, filed without obtaining sanction.
The law regulating the appeal against an order under section797 is contained in section 798 of the Civil Procedure Code. Therelevant part of it, reads as follows.
'798and the procedure on any such appeal shall follow
the procedure laid down in the Code of Criminal Procedure Act No.15 of 1979, regulating appeals from orders made in the ordinarycriminal jurisdiction of the District and Magistrate Court."
The learned Counsel of the accused claims that the phrase“procedure laid down in the Code of Criminal Procedure Act", asused in section 798, attracts the whole of Part VII and in particularsection 318 of the Code. In terms of section 318 of the Code, anappeal against an acquittal by a Magistrate's Court can only bepreferred by the Attorney-General or with his written sanction.Based on this, it was argued on behalf of the accused, that thepetition of appeal should be dismissed in limine. In other words, thelearned Counsel has emphasized, that the written sanction of theAttorney-General is a condition precedent, to prefer an appealagainst an acquittal, under section 798 of the Civil Procedure Code.Indeed, it is so, if the appeal is preferred against an acquittal of theMagistrate. In short, therefore, the crux of the matter is theapplicability of section 318 of the Code, to an order of acquittal,made by a District Judge.
On behalf of the appellant, learned Counsel maintained thatprior to the introduction of the Code of Criminal Procedure Act No.15 of 1979 it was the Code of Criminal Procedure Ordinance, No.15 of 1898, which regulated the procedure, in respect of appealsagainst acquittals, both in the POLICE COURT and DISTRICTCOURT.
He placed much reliance on the omission of the words "DistrictCourt", in section 318 of the Code, to drive home his point, that thelaw, as is presently applicable, requires no written sanction of theAttorney-General, in contrast to the procedure that was prevalentprior to 1973. The point that needs to be clarified here is what infact necessitated the deletion of the words "District Court", fromsection 318, of the present Code. The precise answer to this
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question is that the District Court, which exercised original criminaljurisdiction under the old Criminal Procedure Code, with itsconcurrent exclusive civil jurisdiction, emerged as Court exercising,no more than civil jurisdiction, from the year 1973. The words"District Court", therefore, came to be omitted from Section 318, tokeep pace with this development of the jurisdictional change, as theuse of the words "District Court", in section 318 of the Code ofCriminal Procedure Act, then became redundant.
It has to be borne in mind that the procedure applicable at anygiven period, regulating the appeals arising out of contempt ofDistrict Court was constantly the criminal procedure of the point intime. To restate the issue arising for determination in this judgment,the question for determination here is whether the entire chapterdealing with "appeals" from Magistrate's Court would apply in thiscase or whether it applies with the exclusion of section 318 of theCode that deals with the requirement of having to obtain the writtensanction of the Attorney-General.
The Administration of Justice Law No. 44 of 1973 replaced theCode of Criminal Procedure Ordinance, No. 15 of 1898.Incidentally, Chapter IV of the said law regulated the right of, andprocedure for appeals to the Supreme Court from Judgments, andorders of all original Courts . In dealing with right of appeal, Section315 of the Administration of Justice Law provided that any personwho shall be dissatisfied with any Judgment pronounced by anoriginal Court in any criminal case or matter to which he is a party,may prefer an appeal to the Supreme Court for any error in law.lnreality, appeals by which acquittal orders can be challenged wererestricted only to those, which are filed by the Attorney-General orwith his written sanction.
Section 356 of the Administration of Justice Law, No. 44 of1973, on the other hand, defined the phrase "Original Court" as"District Court and Magistrates Court." In fact, the generalprovisions relating to contempt of Court during the period, when theAdministration of Justice Law remained in force, contained inSection 664 to 667, which provided for matters connected withcontempt of Court and authority to punish as for contempt. As therewere no specific provisions in the chapter dealing with contempt ofCourt, to appeal against an acquittal on such a charge, an
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aggrieved party had to have recourse to section 316 of that law, toprefer any appeal against an acquittal. As such, under theAdministration of Justice Law, it is reasonably clear that an appealagainst an acquittal on a charge of contempt of Court had to bepreferred with the sanction of the Attorney-General.
However, the Administration of Justice Law, 44 of 1973 and 25of 1975, remained in the statute book relatively for a negligiblelength of time, before the Code of Criminal Procedure Act No. 15 of1979 and Civil Procedure Code Act No. 20 of 1977, respectivelyreplaced them.100
It must be emphasized, that the substantive law andprocedure relating to appeals against acquittals and convictions, oncharges of contempt of Court was identical to the law presently inforce, at least from 1898, and was remarkably uniform andsignificantly consistent, for a period of well over a century.
The authorities Thuraisingham v Karthikesi/'K King vChandradasaP), K.D. Abilin v K.D.Davith SinghcW cited on behalfof the appellant, undoubtedly strengthen the proposition of law thatan appeal against a conviction for contempt of Court by the DistrictJudge, is subject to no limitation. As has been expressed in the nodecided cases, the legislature cannot be said to have conferred theright of appeal under 798 and withdrawn it at the stroke of a pen byintroducing the phrase, “procedure laid down in the Code ofCriminal Procedure Act, as being the procedural provisionsapplicable for appeals under 798.
Quite unfortunately, the question as to whether the writtensanction, of the Attorney-General, is a prerequisite to an appeal,against an order of acquittal entered by a District Judge, in acontempt proceeding, has not been authoritatively considered byour Courts. In passing, I would like take the liberty to observe that 120the reason, for such a state of affair is the abundantly plain andsimple language used in section 798 of the CPC and thecorresponding provisions in the statues relating to criminalprocedure.
According to the decided authorities, section 335 of the Codeof Criminal Procedure Ordinance No. 15 of 1898, does not permitan appeal, where a male offender under the age of 16 years is
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sentenced to whipping only and where he has pleaded guilty andbeen convicted by a District Court on such plea. It is also laid downthat where an accused has been sentenced to by District Court toa term of imprisonment not exceeding three months without anyother punishment and to a fine not exceeding one hundred rupeeswithout any other punishment, no appeal is permitted except withthe leave of the District Judge. The authorities cited by theappellant, elucidate whether, limitations spelt out in section 335 ofOrdinance No. 15 of 1898, considered as procedural law orsubstantive law in nature. As has been, constantly pointed out inthe judgements cited by the appellant, the prohibitions imposed bysection 335 (supra) against the right of appeal are substantive law,than matters of procedure. Further, it is beyond any stretch orimagination to think that by enacting section 798 of CPC thelegislature would have intended to reintroduce the substantive lawof limitation of appeals, from the Code, in to the CPC.
Conversely, section 336 of Ordinance No. 15 of 1898, section316(c) of 33 of 1973 and Section 318 of Act No. 15 of 1979, whichdeal with the qualification to lodge an appeal against an acquittal bya Magistrate, except with the written sanction of the Attorney-General, is undoubtedly a restriction affecting the procedural law. Inmy opinion, under no circumstances it can constitute an integralpart of the substantive law.
In the circumstances, it would be seen that the judicialprecedents, relied upon by the appellant are unrelated to the questionthat arises for determination in this case. Based on the underlyingprinciples, I am inclined to endorse the view that the requirement laiddown in section 318 of the Court of Criminal Procedure Act, No. 15 of1979, is a procedural step. Hence, it is my view that section 318 of theCode, is incapable of being isolated from section 798 of the CPC andshould strictly be followed mutatis mutandis, in respect of appealsagainst acquittals recorded by a District Judge.
As the appellant has admittedly failed to conform to therequirement of section 318 of the Code, the preliminary objection,raised by the accused is upheld. In the result, the petition of appeal,filed by the appellant stands dismissed, subject to costs.
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Appeal dismissed.