047-NLR-NLR-V-57-SENEVIRATNE-Appellant-and-SUBRAMANIAM-Respondent.pdf
'1955Present : Gunasekara, J.
SENEVIRATNE, Appellant, and SUBRAMANIAM, RespondentS. C. 323—M. C. Vavuniya, 26,174.
Appeal—Point3 oflaw—Certification—Form—Criminal Procedure Code, s. 340 (2) andSchedule II, Form 12.
.Sentence—First offender—“ Deterrent punishment ”.-
(i) The accused appellant had no right of appeal except On a matter of law.
' The petition of appeal, in which the grounds of appeal were all grounds of law,bore a certificate by a proctor in these terms :— “ I certify that the points of:law raised in this petition of appeal are fit matters for adjudication by thoSupreme Court '-• – v ’
Held, that the certificate complied sufficiently with the requirements of section'340 (2) of the Criminal Procedure Code although it did not foUow’the very words■ of the prescribed Form.' . ■'r -? ■, x
(ii) Sentence of imprisonment passed as “ deterrent punishment ” ' on a■first offender altered to one of fine.
/.PPEAL from a judgment of the Magistrate’s Court, Vavuniya..
Colvin IZ. de Silva, with K. Shinya and //. D. Thambiah, for the-accused appellant. ■
J£. jlf. Kitmarakulasinrjhatn, for tho respondent.
Cur. adv. vult.
April 21, 1955. Gitna-Sekaka, J.—
This is an appeal from a conviction on a charge of wilfully obstructing-an officer of a town council in the performance of his dutj', an offencepunishable under section 236 of the Town Councils Ordinance, Xo. 3 oF1946.
Tho sentence passed on tho appellant was one of vigorous imprisonmentfor one month, and therefore, in terms of section 335 of the CriminalProcedure Code, he has no right of appeal except upon a matter of law.The learned counsel for tho respondent objected to the hearing of the-appeal on the ground tha* it did not comply with the provision in section340 (2) that where the appeal is on a matter of law' the petition shallcontain a statement of t-hc matter of law to bo argued and shall bcar-a ceitificate by an advocate or proctor that such matter of law is a fitquestion for adjudication by tho Supreme Court ”. The petition contains-several grounds of law' and bears a certificate by a proctor in these-terms :—
“I certify that tho points of law raised in this petition of appeal1are fit matters for adjudication by the Supremo Court. ”
It was contended for the respondent that this certificate is insufficient -for the reason that it fails to specify tho grounds of appeal to which it -applies and is not in the prescribed form, which reads :—
“ I certify that tho matters of law stated in the …. ground,of appeal is a fit question for adjudication by the Supreme Court.”
In support of his objection Mr. Kumarakulasingham cited the cases oFBruin v. fV ijesinyhe 1 and The Additional Controller of Establishmentsv. Lewis 2. In tho former case what was certified was “ the matter oflaw in the petition of appeal ”, but there were ” four things stated int-ho petition of appeal as if they were matters of law' ”. It was thus notpossible to distinguish the matter that was certified from the three thatwere not, and Schneider J. held that the certificate was so vague that itcould not be regarded as satisfying the requirements of the CriminalProcedure Code. In the present case it is not difficult to identify thematters which arc tho subject of the certificate, for the grounds of appealare all grounds of law' and the certificate relates to all of them. InLewis’s Case tho certificate, which relates to “ tho inatters ot law stated ”in the petition, is similar to the certificate in the present caso ; but it isnot equally easy to ascertain which of the. grounds of appeal were regardedby the proctor who signed the certificate as grounds of law, and therefore;
1 (1927) o T. C. L. It. 71 '(1919) 40 G. L. 1C. 3,
which of them were covered by the certificate. The result of the de-parture from the prescribed form in that case was that in effect there wasno such certificate as is required by the Code. It is true that Basnayake J.points out that tho prescribed form requires that the grounds of appealshould be stated in consecutively numbered paragraphs and "that thocertificate should specificalty refer by its number to tho ground of appealin which the matter of law to be argued is stated ; but I do not understandhim to imply that a certificate that does not follow this form to the letteris necessarily bad, even though it may state clearly what are tho variousmatters of law that arc certified. In The Police Officer, TJondra, v. Iiaban,rwhich is cited in Lewis's Case, the petition contained seven grounds ofappeal, of which only ono raised a matter cf law, but the proctor certifiedthat the above mattors of law stated in this petition aro fit and properfor tho consideration of the Honourable the Supremo Court ”, Jaya-wardeno A. J. pointed out that the certificate was “ not regular ” andthat it “ should refer specifically to tho ground which embodies the pointof law raised ”, and lie sent the case back for tho proctor to state whatthe paragraphs were which contained the matters of law certified. Inthe present case the information coukl be obtained from the petition it-self although the certificate did not follow the very words of the prescribedform. I therefore overruled the preliminary objection and heard theappeal.
Tho facts givingriseto tireprosecutionof theappellant
are as follows;— On the ISth September 19oil the Chairmanof the Town Council of Vavuniya, issued to the complainantrespondent, who isthecouncil’sdistrainingofficer, a distress
warrant in the proscribed form for the recovery of certainsums shown in the schedule to the warrant as due from certainpersons as arrears of rates in respect of certain premises. The appellantwas one of the persons named in tho schedule as defaulters and a sum ofIts. 160'30 was shown as due from him as rates for the years 1950, 1951and 1952, and the 1st and 2nd quarters of 1953. The respondent wenton the same day to the premises in question, which were occupied by theappellant, and demanded payment of the sum for the recovery of wliichthe warrant had been issued. The appellant refused to pay and therespondent thereupon told him that he woidd seize his movable property.Then the village headman, who had accompanied the respondent, pointedout a chair that was in the premises as the appellant’s property, and therespondent seized it. The appellant snatched the chair and said thatlie would not let him seize any property. The obstruction complainedof consisted in this conduct.’
The appeal was pressed on two grounds, one of which was that thowarrant was illegal for the reason that the council had failed to notify tothe appellant the decision upon an objection taken by him to tho assess-ment of the premises, and the other was that there is no evidence that theproperty seized was property liable to be seized. Section 179 of theTown Councils Ordinance provides that the assessment of any immovableproperty for the purpose of any rate under that Ordinance shall, with thenecessary modifications, bo made in. the manner prescribed by'section 1171 {1923) 25 -V. L. 12. 156.:
of the Municipal Councils Ordinance (now section 235 of the MunicipalCouncils Ordinance, No. 29 of 1947) with respect to immovable proper tywilhin municipal'limits, and all the provisions of that section, together■with those of section 118 (now sec-lion 242 of Ordinance. No. 29 of 1947),among other sections, shall, with the necessary modifications, apply withrespect to every such assessment- made for the purposes of the TownCouncils Ordinance. Section 235 (7) of Ordinance No. 29 of 1947 providesamong other things that when any objection to an assessment is disposedof the council shall cause the decision thereon to be notified to t lie objector.Section 242 provides that no movable property found in any premises inrespect of which any rates may he due shall be seized for any arrears ofrates beyond two quarters next preceding such seizure, unless the movableproperty belonged to a person who was the owner or joint- owner oT thepremises at the time the arrears beyond such two quarters accrued andbecame due, or unless such movable properly belongs to any pf-rson wholias occupied the premises when these arrears accrued and became due.The two grounds of appeal that- were- pressed were based on these- twoprovisions of Ordinance No. 29 of 1947.
According to the evidence that, has been nec-oplcd by the learnedmagistrate, notice of the assessments in respect of each of the years 1950to 1953 was duly served on the appellant and he objected only to theassessment in respect of 1950. There is no evidence, that the decision onthis objection was not notified to him. The distress warrant is regularon tlie face of it and there is no evidence to rebut the presumption that it-was validly issued. The contention that the warrant- is illegal musttherefore be rejected.
In the course of his argument on this point Dr. dc Silva also sought tomaintain that there was no proper inquiry, in the sense of an inquiry thatsatisfied the requirements of the Jaw, into the appellant's objection to theassessment. But this is not one of t lie matters of Jaw covered by theproctor’s certificate and therefore it does not raise a question for decisionin this appeal.
As regards the other ground of appeal that was argued, there wassufficient evidence, in my opinion, to prove that the chair that wasseized was the appellant s property and that the appellant was in occu-pation of the premises when the arrears of rates beyond two quarters nextpreceding the seizure accrued and bec-arne due. When the respondenttold the appellant that he would seize his movable property and the head-man pointed out the chair for seizure and it was seized the appellant didnot- deny that it was his property. Nor did lie say at the trial that itwas not his property. Moreover, as the learned magistrate points out,it was found in premises occupied I>y the appellant. According to therespondent’s evidence the appellant was in occupation of the premises inquestion throughout the period 1950 to 1953, and the respondent- him-self served on him all the notices of assessment in respec-t of those years.
I see no reason to interfere with the conviction-
The maximum punishment for tlie offence is a- fmo of 11s. 50 or imprison,ment of either description for three months. The learned magistratelias taken tlio view that deterrent punishment is dc.sirablo because
several cases have recently been brought beforo him *' whore the consti-tuted authority of the Town Council had been challenged But theappellant himself is apparently a first offender and his own act of obstruc-tion was not accompanied by any aggravating circumstances. With allrespect to the learned magistrate it seems to mo that the.case is not onethat calls for a sentence of imprisonment to bo passed on a first offenderin order to deter others from committing similar offences. I sot asidet lie scutcnco passed by t ho learned magistrate and I sentence the appellantto a fino of Ks. 30 or two weeks’ rigorous imprisonment in default ofpayment of the fine. .Subject to this variation in the sentence the appealis dismissed.
Conviction affirmed.
Sentence varied.