SITHAMPARAMPILLAI v. MURUGESU

057-NLR-NLR-V-42-SITHAMPARAMPILLAI-v.-MURUGESU.pdf


HOWARD CJ.—Sithampa rampillai v. Murugesu.
235
1941Present: Howard CJ.
SITHAMPARAMPILLAI v. MURUGESU824—M. C. Point Pedro, 20,480.
Warrant—No endorsement regarding security bond—Warrant defective—Escape from custody of Fiscal’s process server no offence—Penal Code,s. 219.
Where a warrant issued, under section 62 (1) (a) of the CriminalProcedure Code against an accused who was evading service of summons,did not contain an endorsement with regard to the execution of a bondas required by section 51 of the Criminal Procedure Code,—
Held, that the warrant was defective and that a public servantexecuting it could not be said to have acted in discharge of his publicfunctions, nor was the person arrested in lawful custody.
A Fiscal’s Process Server is a public servant within the meaning ofsection 19 of the Penal Code.
PPEAL from a conviction by the Magistrate of Point Pedro.
D. Cosme (with him K. C. Nadarajah), for the accused, appellant.
H. W. Thambiah for the complainant, respondent.
Cur. adv. vult.
January 28, 1941. Howard C.J.—
This is an appeal against the decision of the Magistrate of Point Pedroconvicting the accused of charges under sections 219 and 367 of theCeylon Penal Code and sentencing him to six months’ rigorous imprison-ment on each charge, the sentences to run concurrently. Proceedingswere instituted against the appellant under section 148 (b) of the CriminalProcedure Code. A written report was made to the Magistrate by oneKandappu Sithamparappillai, a Fiscal’s Process Server as a publicservant. Counsel for the appellant contends that the proceedings arevitiated ab initio inasmuch as a Fiscal’s Process Server is not a “publicservant” within the meaning of this term in section 19 of the PenalCode. In my opinion there is no substance in this contention. AFiscal’s Process Server is clearly within the ambit of the fifth categoryof descriptions specified in section 19 of the Penal Code and was more-over treated as such in the case of Wijetunge v. Podi Sinno1 and Goone-tilleke v. Atapattu
It is also argued that the conviction of the appellant on the charge ofresisting his lawful apprehension under section 219 of the Penal Codecannot be sustained because the warrant on which his apprehension wassought is defective. It is alleged that it is defective for the followingreasons : —
because it was not in the prescribed form and hence contravened
section 50 of the Criminal Code ;
because it did not contain the endorsement specified in section
51 (1) of the Criminal Procedure Code.
With regard to (a) Counsel for the appellant argued that the wart antwas issued under section 62 (1) (b) of the Criminal Procedure Code and
1 3 Brown’s Reps. 57.* 6 C. L. R. 63.
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HOWARD CJ.—Sithamparampiltai v. Murugesu.
should have, therefore, been in Form No-. 3 in the Second Schedule.The warrant issued in this case does not contain the words “ although ithas now been proved to me upon oath (or affirmation) that the saidsummons has been duly served upon him ”. Instead of these wordsit contains the words “ and it has been proved to me that he is evadingservice of the summons”. I am of opinion that the warrant was issuedunder paragraph (a) and not paragraph (b) of section 62 (1). No specialform has been prescribed for a warrant issued under this paragraph.The words in the warrant were applicable to the special circumstancesin which it was issued and in employing the language he did the Magistratewas exercising the powers vested in him by section 442 of the Code.There is, therefore, no substance in the argument that for this reasonthe warrant was defective.
(b) now requires consideration. The warrant did not contain theendorsement with regard to the execution of a bond. It has been arguedby Counsel for the respondent that section 51 does not apply to a warrantissued under section 62 (1) (a). I do not consider that any such limitationcan be placed on the operation of section 51. Does, however, the absenceof the endorsement so vitiate the validity of the warrant so as to make anarrest effected thereby unlawful ? Counsel for the appellant on theauthority of Wills v. Sholay Kangany1 and Deputy Fiscal, Kegalla v.Tikiri Banda ‘ contends that it does. In Wills v. Sholay Kangany (supra)it appeared that the Magistrate in directing the issue of a warrant ofarrest acted op a printed -form on the back of the complaint containingsome stereotyped statements usually required to be sworn to for thepurpose of obtaining a warrant. In condemning this procedure deSampayo J. stated that the issue of a warrant is a serious matter and theMagistrate should exercise his own independent judgment on the factsbefore he does this judicial act. In every case it is the duty of theMagistrate to see that the complainant or other person when giving whatpurports to be oral evidence, gives it consciously and with a due sense ofhis own responsibility and that he not merely adopts general statementsalready printed and furnished to him by the proctor. In Deputy Fiscal,Kegalla v. Tikiri Banda (supra) it was held that a warrant, which is issuedfor the arrest of a judgment-debtor in terms of section 219 (2) of theCivil Procedure Code and which is not signed by the Judge, is void.A person who escapes from the custody of an officer purporting to executesuch a warrant is not guilty of an offence under section 220a of the PenalCode. In the course of his judgment, Jayewardene A.J. stated asfollows : — '
“ The judge must see that the warrant as issued contains on the faceof it all the essential particulars. The persons against whom thewarrant is sought to be executed is entitled to see the warrant for thepurpose of satisfying himself as 'to these particulars, for expamle,as to the amount, or that the person executing the warrant againsthim was legally authorised so to do .. .. Under the Criminal
Procedure Code, the person executed a warrant of arrest must notifythe substance of the warrant to the person arrested, and if so required,
* 29 N. L. R. 443.
* 18 N. L. R. 443.
HOWARD CJ.—Abeyesekere v. The Colombo Municipality.
237
show him the warrant or a copy thereof signed by the person issuingthe same …. When a warrant is ex facie defective, the publicservant executing it cannot be said to be acting in the discharge of hispublic function, nor is the person arrested in lawful custody.”
It will be observed that the direction in section 51 with regard to theendorsement on the warrant is mandatory so far as bailable offences areconcerned whereas in the corresponding section of the Indian CriminalProcedure Code it is merely permissive. The provision was no doubtinserted in the Ceylon Code so that the warrant should bring to thenotice of the person arrested his right to release from custody on furnish-ing bail. The endorsement was, in these circumstances, an essentialparticular. As it was missing, the warrant was ex facie defective and inexecuting it the Fiscal’s Process Server cannot be said to be acting in thedischarge of his public function. Nor was the appellant in lawful custody.The conviction and sentence of the appellant under section 219 aretherefore quashed. The conviction and sentence under section 367 areaffirmed.
Varied.