118-NLR-NLR-V-43-VIVIENNE-GOONEWARDENE-v.-WIJEYESURIYA.pdf
487
1942
Vivienne Goonewardene v. Wijeyesuriya.
Present: Hearne J.
VIVIENNE GOONEWARDENE u. WIJEYESURIYA.
449—M. C. Colombo, 40,959.
Order of attachment—Order for arrest of person by Governor—Personabsconding—Attachment of property—Application by attorney to cancelorder—Defence (Miscellaneous) Regulations, No. 3.
On a report by a Police Officer to the Magistrate of Colombo that" His Excellency the Governor had made an order against Mrs. G—in pursuance-of the powers vested in him by the Defence (Miscellaneous)Regulations—which was deemed to be a warrant for the arrest to Mrs. Gand that she had absconded or was concealing herself so that thewarrant could not be executed ”, the Magistrate published a proclamationrequiring Mrs. G to appear at a specified place and time and also, interms of section 60 (1) of the Criminal Procedure Code, issued an orderfor the attachment of her property. Thereupon the attorney of Mrs. Gfiled an affidavit in the Magistrate’s Court to the effect that Mrs. Ghad told him, in .November, 1941 (five months prior to the Governor’sorder), that she was leaving Ceylon immediately and that he had notseen or heard from her since that date. He verily believed that shecarried out her intention of leaving the Island and moved the Court tocancel the order of attachment.
Held, that the attorney had no status to move the Court to rescind theorder, as Mrs. G must be deemed to be in contempt till she comesforward in response to the proclamation.
PPEAL from an order of the Magistrate, Colombo.
Crown Counsel raised the preliminary- objection that there was noright of appeal from the order of the Magistrate.
H. V. Perera, K.C. (with him N. Nadarajah, K.C., V. Mendis, andH. W. Jayawardene), for appellant.—Even if there is no right of appealthe Court can exercise its revisionary powers. It is submitted thatthere is no legal foundation for the attachment order. Before a pro-clamation and an attachment order are issued, it must be shown thatan accused is absconding; knowing of the warrant, or is in concealment.See In re Ramjibhai1 and the case reported in 29 A. I. R. (Madras) 289.There must be some material to' satisfy the Magistrate that the accusedwas absconding—(1935) 35 Cr. L. J. 1286. “Absconding” means evadingprocess, i.e., the order of detention. One must be aware of process andkeep away—(1942) A. I. R. (Madras) 289.
The order of detention is “ deemed to be a warrant ” only for limitedpurposes, namely, for purposes of execution, not for purposes of contempt.For the effect of the phrase “ deemed to be …. ”, see Arthur
HIU v. East and West India Dock Company .*
H. T. Gunasekera, C.C., for respondent.—It is submitted that the'petitioner had no “status” to move the Magistrate'to rescind his orderof attachment* The property belongs to Mrs. G., not to her attorney.The attorney has no interest, apart from the. interests of Mrs. G. If
* (1884) 9 -4. C. 448 at p. fjG.
1 13 Cr. L. J. 796.
488
HEARNE J.—Vivienne Goonewardene v. Wijeyesuriya.
her interests are infringed the proper remedy is a civil action. SeeIn re Chunder Bhon Singh.' If the petition is on behalf of Mrs. G. theCourt cannot entertain it, for an absconder is in contempt and cannotbe heard. The words “ deemed to be a warrant ” indicate that thepowers of a Magistrate’s Court are to be used for executing a detentionorder.
Cur. adv. vult.
July 30, 1942. Hearne J.—
An Officer of the Criminal Investigation Department reported to theMagistrate of Colombo that “ His Excellency the Governor had madean order against Mrs. V. Goonewardene, in pursuance of powers vestedin him by the Defence (Miscellaneous No. 3) Regulations, that the orderwas deemed to be a warrant for the arrest of Mrs. Goonewardene(Regulation 1 (9) ) and that she had absconded or was concealing herselfso that the warrant could not be executed He asked the Magistrateto publish a proclamation, requiring her to appear at a specified placeand time and also asked, in terms of section 60 (1) of the Criminal Pro-cedure Code, for an order of attachment of any property belonging toher. Both the applications were allowed.
Mr. C. E. Jayewardene, a Proctor, then filed an affidavit in the Magis-trate’s Court to the effect that Mrs. Goonewardene had appointed himher attorney by deed, that she had told him in November, 1941 (fivemonths prior to the Governor’s order), she was leaving Ceylon“ immediately ” and that he had not seen or heard from her since thatdate. “ He verily believed that she had carried out her intention ofleaving the Island ” and moved the Court to cancel the order of attach-ment of the property of Mrs. Goonewardene. This was refused. It wasconceded that there was no right of appeal from the order of refusaland this Court has been asked to exercise its revisional jurisdictionin respect of the said order by setting it aside and releasing Mrs. Goone-wardene’s property from attachment.
. It is necessary to decide, in the first place, whether the petitionerhad any status at all to move the Magistrate to rescind his order. Iagree with Crown Counsel that prima facie he had no status. A pro-clamation having been issued, requiring Mrs. Goonewardene to appear,she must, till she does so, be deemed to be in contempt. It may be sheis not, for the reason that she has had no notice of the proclamation.If, later on, she comes forward and offers an explanation it will be theduty of the Magistrate to determine judicially whether her explanationis satisfactory. If it is held that it is, she may, if so advised, apply fora suspension of the attachment order. But till she comes forward inresponse to the proclamation she must be regarded as in contempt,and po Court will ordinarily entertain an application on behalf of a personwho is in contempt of its authority.
Counsel for the petitioner appreciated this and, in the argumentbefore me, submitted that his client would be accorded a hearing, atleast as amicus curiae, when he could show, as he claimed to be able toshow, that there' was in fact no legal foundation for the attachmentorder, in other words that the Magistrate had acted without -jurisdiction.
» (1872) 17 Suth. W. R. (Cr.) 10.
Murugappa Chettiar v. Bandaranayake.
489
In this connection, he cited two cases. In one of them, reported in13 Cr. L. J. 796, a Magistrate issued a warrant for the arrest of a personin his district when the only information he had was that he had leftthe district. Upon the intervention of a third party the matter wasreferred to the High Court, which declared the warrant as well as theproclamation and attachment which followed to be illegal. In the otherreported in (1942) 29 A. I. R. 289, an affidavit was filed on behalf of thepetitioner that the accused had left India for the Federated Malay Statesbefore the warrant for his arrest had been issued and the complainantdid not contradict the statement. It was held that the proclamationand attachment were. bad.
The facts in this case are very different. The petitioner, so far frombeing able to show affirmatively that Mrs. Goonewardene has left Ceylon,does not really know where she is. What she is alleged to have told him,if she did, may not be the truth. There is no proof, as the Magistratepointed out, that she obtained a passport, booked a passage or wasseen off at a Railway Station. The sum total of reliable informationplaced before him by the petitioner was that she was in the Island inNovember, 1941.
Even if I accept the Indian cases as a guide (they do not bind thisCourt) and hold that a stranger may, in certain proved circumstances,invite a Court to revise an order it has made, those circumstances havecertainly not been shown by the petitioner to exist.
I uphold Crown Counsel’s objection that the petitioner had no statusand the application in revision is dismissed.
Application refused.