THURAISINGHAM et al., Appellants, and KARTHIKESU, Respondent

140-NLR-NLR-V-50-THURAISINGHAM-et-al.-Appellants-and-KARTHIKESU-Respondent.pdf


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DIAS J.—Thwraisingham v. Karthikesu
1948Present: Dias and Gratiaen JJ.
THURAISINGHAM et al., Appellants, and KARTHIKESU,Respondent
S.C. 59-61—D. C. Criminal, Jaffna, 3,159
Contempt of Court—Disobedience of injunction—Sentences non-appealableiunder Criminal Procedure Code—Right of appeal—Civil ProcedureCode, Chapter 65.
A right of appeal exists in every case against an order, sentence, orconviction in a contempt proceeding. The general rules of procedureare those contained in Chapter 30 of the Criminal Procedure Codeso far as they are applicable.
^^.PPEAli from a judgment of the District Judge, Jaffna.
S. J. V. Chelvanayakam, K. Gwith H. W. Tambiah, for the appellants.
Colvin R. de Silva, with C. S. Barr Kumarakulasinghe, H. W.
Jayewardene and T. W. Rajaratnam, for the respondent.
Cur. adv. vult.
September 24, 1948. Dias J.—
The appellants are the 1st, 2nd and 3rd defendants in D. C., Jaffna,3,159. They were convicted for contempt of Court for alleged dis-obedience of an injunction issued by the Court. Section 663 of theCivil Procedure Code empowers a Court of civil jurisdiction to punishas for a contempt of Court disobedience of an injunction issued by suchCourt—see Perera v. Abdul Hamid 1. The 1st and 2nd appellants weresentenced to undergo six weeks’ rigorous imprisonment. The 3rdappellant, who is a Woman, was sentenced to pay a fine of Rs. 50.
1 (1931) 33 N. L. R. 285.
DIAS J.—Thwraisingham v. Karthikesu
671
Mr. Colvin Ifc. de Silva for the plaintiff petitioner has taken thepreliminary objection that none of these appellants has a right of appealinasmuch as the sentences imposed by the District Judge are non-appealable under section 335 (1) (d) and (e) of the Criminal ProcedureCode. We decided to deal with this preliminary matter in the firstinstance. It was agreed that if the objection failed, the main appealagainst the convictions should be listed for argument in due course beforeanother bench of two Judges as it will be some time before my brotherand I will be able to sit together by reason of the fact that I have toproceed on circuit in a few days.
The procedure governing a prosecution for contempt of Court iscontained in Chapter LXV of the Civil Procedure Code (sections 792-800).The law regulating appeals in such cases is to be found in section 798which reads as follows :—
“ 798—An appeal shall lie to the Supreme Court from every order ’sentence, or conviction made by any Court in the exercise of itsspecial jurisdiction to take cognizance of, and to punish by way ofsummary procedure the offence of contempt of Court, and of offencesby this Ordinance made punishable as contempt of Court; and theprocedure on any such appeal shall follow the procedure laid down inthe Criminal Procedure Code regulating appeals from orders madein the ordinary criminal jurisdiction of District and Magistrates’Courts
Mr. de Silva contended that the meaning of section 798 is that allappeals in prosecutions under Chapter LXV of the Civil ProcedureCode are governed by the provisions of Chapter XXX of the CriminalProcedure Code (sections 335-352). Therefore, as no appeal lies in caseswhere an accused has been sentenced by a District Court to a term ofimprisonment not exceeding three months without any other punishment(section 335 (1) {d) ), or where an accused has been sentenced by a DistrictCourt to a fine not exceeding one hundred rupees without any otherpunishment (section 335 (1) (e)), it is argued that these appellants haveno right of appeal except with the leave of the District Judge. No suchleave having been obtained, it is submitted that these appeals must berejected.
At the date the Civil Procedure Code was enacted in 1889 the oldCriminal Procedure Code, No. 3 of 1883, was in existence. Sections 400et seq. of that Code are almost similar to what is enacted by the CriminalProcedure Code of 1898. It is curious that during the past fifty-nine years, although there have been many appeals from convictions forcontempt of Court, the question now raised has apparently not beenraised before. In the ease of R. v. Chandradassa1 an accused, whohad been fined Rs. 50 by a District Court for contempt of Court, appealedto the Supreme Court. Both sides were represented at the hearing ofthe appeal. Yet, the point now taken was not raised as a bar to thehearing of the appeal. On the contrary, Schneider J. said : “ Theappellant is entitled to appeal by virtue of the provisions of section 798of the Civil Procedure Code ”. That learned Judge, by reason of bis long
1 (1923) 1 T. L. R. 166.
67 2
DIAS J.—Thuraiaingham v. Karthikesu
Practice at the Bar -when he acted both as Solicitor-General and Attorney-General, would be perfectly familiar with the legal principles applicable.Although the point now raised does not appear to have been specificallyraised, Schneider J. had no doubt that, although the appellant had beenonly fined Es. 50 in the District Court, he was entitled to appeal1.
An interesting argument was addressed to us to show that theprovisions of section 335 of the Criminal Procedure Code are not rulesof substantive law, but are adjective or procedural law. Counsel for theappellants does not contest this. In fact, it seems to be quite clearthat the whole of Chapter XXX of the Criminal Procedure Code containrules of procedure. The question we have to determine is whether,granting that section 335 of the Criminal Procedure Code contains rulesof criminal procedure, the right of appeal granted in the earlier part ofsection 798 of the Civil Procedure Code from every order, sentence orconviction is taken away, limited, or annulled by the latter part of thesection which provides that appeals under section 798 are to follow theprocedure laid down in the Criminal Procedure Code regulating appeals inDistrict Court criminal cases and appeals from Magistrates’ Courts. ThatSchneider J. did not think so is at least clear from I?, v. Chandradassa(supra).
Reference was made to appeals under the Maintenance Ordinance.Section 17 of the Maintenance Ordinance (Chapter 76) provides that anyperson who shall be dissatisfied with any order made by a Magistrateunder section 2 or section 14 may prefer an appeal to the Supreme Court“ in like manner as if the order was a final order by a Magistrate’s Courtin a criminal case or matter, and sections 338 to 352 (inclusive) of theCriminal Procedure Code shall apply to such appeal”. In my opinionno assistance can be derived from this section in construing section 798 ofthe Civil Procedure Code.
Reference was also made to the recent case of Thomas v. CeylonWharfage Co., Ltd.2. Section 48 of the Workmen’s CompensationOrdinance (Chapter 117) gives to a workman an appeal on a point of lawagainst an order made by the Commissioner. Section 51 says that“ subject to the provisions of this Part, the provisions of Chapter XXX
1 I have examined several cases and reproduce the results :—-
Perera v. Per era (1906) 8 1ST. L. R. 343—Court of Requests. Three persons were•convicted under section 800 of the Civil Procedure Code and sentenced respectivelyto 30 days’ simple imprisonment, a fine of Rs. 5 or 3 days’ imprisonment in default,and a fine of Rs. 50 with 1 month’s imprisonment in default. The appellants andrespondents were all represented. No question regarding the right of appeal wasraised. In re Varvny Aiyar (1915) 18 N. I,. R. 180—Pino of Rs. 7‘50 for contemptof the Magistrate’s Court. No appearance for the Magistrate. No question raisedregarding the right of appeal. Conviction quashed. The point that the Magistrate’sCourt had no jurisdiction to deal with the matter was not raised. V elaqrper v.SinnapUlai (1915) 1 C. W. R. 91—Conviction in Court of Requests for contempt of■Court. Accused fined but the amount does not appear in the report. No appearancefor the Magistrate. The question of the appellant’s right to appeal was notquestioned. Conviction quashed and fine remitted. Remgasamy v. Seale (1915)1 C. W. R. 195—Conviction in District Court for contempt of Court. Appellantfined Rs. 100 or in default to undergo 1 month’s imprisonment. Both sidesrepresented. The right of the appellant to appeal was not questioned. Abeykoonv.AdiJcaram (1928) 9 Ceylon L. Rec. 132—Pine of Rs. 2 -50 for an alleged contemptof the Magistrate’s Court. No appearance for the Magistrate. The question of theright to appeal was not considered. Perera v. Abdul Hamid (1931) 33 N. L. R.285—Charge of contempt of court in a Court of Requests. Complainant appealedwithout the sanction of the Attorney-General. The right to do so was not questioned.
11 (1948) 49 N. L. R. 397.
DIAS J.—Thuraisingham v. KarthiJceeu
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of the Criminal Procedure Code shall apply mutatis mutandis in regardto all matters connected with the hearing and disposal of an appealpreferred under section 48…” In the above cited case
Basnayake J. held that the effect of section 51 was to make applicablethe provisions of section 340 of the Criminal Procedure Code to an appealon a question of law, and that in the absence of a certificate from anadvocate or proctor that such point of law was a fit question for adjudi-cation by the Supreme Court, the appeal should be rejected. I do notthink this case affords assistance in solving the problem before us, whichmust be determined by an interpretation of the language used in section798 of the Civil Procedure Code. What is the precise meaning to begiven to the words “ shall follow the procedure laid down in the CriminalProcedure Code ? ”
An examination of the authorities indicates that section 798 is onlyconcerned with appeals from convictions in District Courts and Courtsof Requests. The section does not apply to the Supreme Court or toMagistrates’ Courts. In the case of In re Wijesinghe1 a Divisional Courtheld that section 798 does not apply to orders made or sentences passedfor contempt by one or more Judges of the Supreme Court. In the caseof In re de Sousa 2 Pereira J. said “ I doubt that Chapter LXV of the(Civil Procedure) Code …. was ever intended to apply to theSupreme Court. The only indication of such an intention is section 800of that Chapter which does no more than repeat the provisions ofsection 81 (section 47 ?) of the Courts Ordinance as to the punishment tobe imposed by the Supreme Court in cases of contempt ”.
Although Magistrates’ Courts are given jurisdiction by section 57 ofthe Courts Ordinance to punish for contempts of Court, there is nopenalty provided either by the Courts Ordinance or by section 800 of theCivil Procedure Code. This omission in the law was pointed out inSilva v. Carolis 3 when it was held that Chapter LXV only applied tocivil Courts, that is to say, to District Courts exercising civil jurisdictionand to Courts of Requests. Even when a contempt is committed in theface of a Magistrate’s Court, the proper procedure is for the Magistrateto report the case to the Supreme Court for necessary action.
The history of the law of contempt of Court in this Island shows thatthe right of a minor Court to punish for contempt is one which theLegislature carefully guarded. When it is realized that there was a timewhen almost the whole of the minor judiciary was manned by civilians,the reason for this caution becomes manifest. That is the reason whywhen jurisdiction was conferred on District Courts and Courts of Requeststo punish certain contempts of Court, the Legislature in section 798was careful to provide that an appeal to the Supreme Court was to lie“ from every order, sentence or conviction ”. An “ order ” would includea discharge or an acquittal. It was the policy of the Legislature to giveboth sides in a contempt proceeding free access to the Supreme Courtby way of appeal. When this is realized, it seems to me that the con-struction of the latter part of section 798 presents no formidable
1 (1913) 16 N. L. R. 312.
• (1914) 18 N. L.R.atp 43.a (1918) 20 N. L. R. 445.
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Richard Costa v. A. 8. P. {O.IJD.), Colombo
difficulty, although, the Legislature might have made its meaning plainer.What section 798 -says in effect is “ In every contempt proceeding anappeal to the Supreme Court shall lie against every order, sentence, orconviction ” from District Courts and Courts of Requests. Those appealsshall follow the machinery provided by Chapter XXX of the CriminalProcedure Code so far as the same are applicable ”. I find it impossibleto hold that the law-giver conferred the right of appeal, and then immedi-ately proceeded to deprive the appellant of that right by bringing section335 into operation. We must give some meaning to every word used by theLegislature in section 798 of the Civil Procedure Code. I am of the viewthat the generality of the powers of appeal given by section 798 cannotbe rendered inoperative or nugatory in the manner suggested. The trueintention underlying section 798 is that while a right of appeal existsin every ease against an order, sentence, or conviction in a contemptproceeding, the general rules of procedure contained in Chapter XXXof the Criminal Procedure Code, so far as they are applicable, must befollowed in order to bring the case before the Supreme Court. Thusthe appeal must be filed within the time limit allowed and the petitionof appeal must conform to the usual form and bear the requisite stampduty. If the appellant is on remand he should be allowed bail, or ifhe cannot give bail, hard labour must be stayed. When an appeal isfiled, the trial judge must take steps to notice the other side and transmitthe appeal to the Supreme Court. On receipt in the Registry the casewill be numbered, &c.
I am, therefore, of opinion that the preliminary objection fails, andthat the appellants are entitled to have their appeals heard and decidedon the merits in due course.
Gkatiabn J.—I agree.
Objection overruled.