T. S. ^FERNANDO, J".—Navaratnam v. J£.arunaratne
1957Present:K. D. de Silva, J., and T. S. Fernando, J.
S. NAVARATNAM, Petitioner, and K. B. KARUNARATNE (Police
Sergeant) and an.oth.er, Respondents.
S. C. 447—Application in Revision in M. C. Jaffna,,, 11055
Children and Tovmg Persona Ordinance, No. 48 of 1939—Section 35 (1)—Meaningand effect of expression “ is satisfied ”—Duty of Court to hear evidence.
When an application, is made “before a Juvenile Court in terms of seotio n36 (1) of the Children, and Ymmg Persons Ordinance, it is the duty of the Magis-trate to hear evidence and be personally satisfied that the young person inquestion is in need of care or protection. The Magistrate cannot act merelyon a report made to him by a probation officer.
-i^^-PPL.1 CATION to revise an order of the Magistrate’s Court, Jaffna.C. Ranganathan, for the petitioner.
T.A. de S. Wijesundere, Crown Counsel, for the Attorney-General.
Cur. adv. wit-
November 8, 1957. T. S. Ferutastdo, J.—
The petitioner, a brother of a lad named Thevarajah, said to be 15 years:and 10 months old today, seeks the intervention of this Court in its-revisionary jurisdiction for the setting aside of an order made on 27thJuly 1957 by the Magistrate’s Court of Jaffna sitting as a Juvenile Courtdirecting Thevarajah to be sent to St. Vincent’s School at Maggona, anapproved school within the meaning of the Children and Young Persons-Ordinance, No. 48 of 1939.
The facts relevant at the present stage may be set down as follows '—
On 8th April 1957, a Police officer, the respondent to the presentapplication, produced Thevarajah before the Juvenile Court and movedthat action be taken (in respect of Thevarajah) in terms of section 35 (l)-.of the Children and Young Persons Ordinance. Under that section,where a Magistrate’s Court sitting as a Juvenile Court is satisfied that anyperson brought before it under that section is a child or young, personin need of care or protection the Court is empowered to make certainorders as specified therein. One of these is to order that the child oryoung person be placed for a specified period not exceeding three years,under the supervision of a probation officer. When Thevarajah wasproduced as stated above, the learned Magistrate made order calling for areport from the probation officer, the report to be submitted on 24th?.April 1957. On this latter date, the respondent Police officer stated toCourt that he proposed to lead certain evidence to satisfy the Magistrate-that Thevarajah stands in need of care or protection. He appears there-fore to have understood that an inquiry upon evidence was necessary-before bis application could be granted. Inquiry was accordingly fixecLfor 27th April 1957.
T. S. FEERSTAXDO, J.—Navaratnam v. Kcerunaratne
The proceedings in court on 27th April 1957 are recorded as follows '—“ Mr. Sabapathy who appears for the respondent (presumably The vara j ah)desires that the boy be placed under the employment of some person whocan look after him and teach him a useful trade, subject to the controland supervision of the probation officer. ” On this day the probationofficer asked for time till 6th May 1957 to make inquiries and report toCourt. On 6th May 1957 after hearing certain submissions made by (a)the probation officer (6) Mr. Sabapathy, the proctor for Thevarajah and(c) the parents of Thevarajah, the Magistrate purporting to act undersection 35 (1) of the Ordinance ordered that Thevarajah be placed underthe supervision of the probation officer for a period of two years, and thatduring this period Thevarajah will he employed under Mr. Feldanoor any other employer approved by the probation officer.
Although Thevarajah had been handed over the next day to the careof his new employer, it would appear that he had run away from Mr.Feldano on 9th May 1957, and it is alleged that he had been inducedto do so by one Manuel whose association with Thevarajah the probationofficer believed to be undesirable. On these facts and allegations beingbrought to the Magistrate’s notice, warrant was issued on 11th May1957 for The vara j ah’s arrest, followed by an open warrant which wasordered on 25th June 1957. Thevarajah was eventually arrested andproduced before the Magistrate on 27th July 1957 and on that day, onrepresentations made to court by Thevarajah’s parents and by the pro-bation officer, the order made on 6th May 1957 placing Thevarajah underthe supervision of the probation officer was cancelled and order was madeby the Magistrate directing Thevarajah to be sent to the approved schoolreferred to above for a period of three years.
Both orders, viz., those made on 6th May and on 27th July 1957,were appealable. By way of an excuse for failure to appeal against theorder of 27th July, it is alleged by the present petitioner, who is the.elder brother of Thevarajah, that the Manager of St. Vincent’s School,at Maggona refused to permit Thevarajah to sign a petition of appealforwarded through him. This allegation made upon affidavit by thepetitioner baa not been controverted, and in these circumstances we havebeen urged to deal with the matter by way of revision. We are disposedto do so on account of the conclusion we have reaehed in respect of theregularity of the order made on 6th May purporting to be one undersection 35 (1) of the Ordinance. The order which is the subject of grie-vance in this application in revision is the later order (of 27th July)purporting to have been made under section 37 (1) of the Ordinance, andthis later order can be sustained only if the earlier order had beenregularly made.
The question for our decision turns upon the meaning of the expression“ is satisfied ” occurring in section 35 (1). It is apparent upon a perusalof the record of the proceedings that no evidence was taken in the Magis-trate’s Court, and the order of 6th May has undoubtedly followed uponan acceptance by the learned Magistrate of Hie opinion of the probationofficer contained in the latter’s report of 24th April that Thevarajah wasin need of care or protection. It is possible that the submissions madeby Mr. Sabapathy on 27th April also contributed to the omission on
T. S- 5*ERNA1TX>0, J.—Navaratnam v. Karunaratne
the part of the Magistrate to proceed to inquiry upon evidence as indicatedin his order of 24th April; but it seems to me that an implied willingnesson the part of the young person (given expression to by his lawyer)to submit to the making of an order placing him under the supervisionof a probation officer did hot have the effect of rendering unnecessarycompliance with the requirement that the Magistrate should have beenhimself satisfied that the young person was in need of care or protection.Gould the Magistrate then have been satisfied without evidence and merelyon a report made to him by the probation officer ?
No Rules of Court as envisaged in section 12 of the Ordinance havehitherto been made for regulating idle procedure and practice relating tothe hearing and determination of an application relating to a young person.There is however nothing in the Criminal Procedure Code or in Part I ofthe Ordinance relating to the procedure in Juvenile Courts which appearsto justify the making of orders under section 35 of the Ordinancewithout the necessity of taking evidence. Some guidance on the questionarising for decision on this application may be obtained by reference tothe corresponding English Law. The Children and Young PersonsOrdinance, No. 48 of 1939, has been adapted from the Children and YoungPersons Act of 1933 (23. Geo. V. Ch. 12), and sections 35 and 37 of ourOrdinance are closely modelled on sections 62 and 66 respectively of theEnglish Act. Rules 19 to 22 of the Summary Jurisdiction (Childreu andYoung Persons) Rules -of 1933—S. R. & O. 1933, No. 819. L.23 clearlyindicate that the Court shall hear evidence on behalf of the applicantand, where tendered, on behalf of the child or young person concerned.
Where a statute has conferred a power on a judicial authority to makean order affecting the liberty of an individual on such authority beingsatisfied that a certain state of affairs exists, 1 am of opinion that 'thereshould be proof of the existence of that state of affairs offered before suchauthority in the normal way proof is offered in judicial proceedings. Theopinion of the probation officer in this case cannot take the place of proofthat the young person in question is in need of care or protection.The legislature made the making of the order conditional on the Magis-trate himself being satisfied. If the legislature intended otherwise, itwould have been sufficient if power had been conferred, on the Magistrateto make the order specified in section 35 on a report being made to himby a probation officer that the young person is in need of care or protection.Eor the reasons I have set out above, I am of opinion that the expressionin question must be taken as meaning " is satisfied on evidence ”. Ifthis be the true meaning of the expression occurring in section 35, thenthe order of 6th May was made without authority. If so, it follows thatthe order now complained of is also irregular. In the circumstancesrelated above I would set aside the order of 27th July 1957 under whichThevarajah 'was sent to St. Vincent’s Approved School at Maggona,and direct that he be released forthwith from the School. The orderof 6th May 1957 has already "been cancelled by the learned Magistrate,and no direction is necessary thereon from this Court.
K. D. x>e Silva, J.—I agree.
Order set aside.