030-NLR-NLR-V-71-W.-A.-L.-WICKREMARATCHI-Appellant-and-INSPECTOR-OF-POLICE-NITTAMBUWA-Respond.pdf
I Vickrcmaruh hi v. Inspector of Police, NiUambuwct
121
1968Present: Alies, J.
W. A. L. W1CKREMARATCHI, Appellant, and INSPECTOR OFPOLICE, NITTAMBUWA, RespondentS. C. 73711967—M. G. Oampahu, 6679 B
■Jurisdiction of (Joneiliation Boards—It does not oust the jurisdiction of the establishedcourts of law—Right of a subject to seek redress in a court of law—Fundamental 'character thereof—Absence of certificate from Chairman of Conciliation Board—Whether it is a curable irregularity—Penal Code, s. 314—Criminal ProcedureCode, as. 147, 425—Conciliation Boards Act, No. 10 of 1958, ss. 6,12,14 (1) (6).
Accused-appellant was convicted in a Magistrate's Court upon a charge, undersection 1114 of the Penal Code, of causing simple hurt. Objection was taken forthe first time in appeal that the Magistrate acted without jurisdiction in viewof section 14 (1) (6) of the Conciliation Boards Act and that he should not haveentertained tho Police plaint in the absence of a certificate that the allegedoffence had been inquired .into by a Conciliation Board and had not beencompounded.
Held, that the provisions of section 14 (1) (6) of the Conciliation Boards Actwere not applicable to tho present case. “ Section 6 of that Act contemplatesthat the only disputes and offences which can be referred for inquiry to aConciliation Board are such disputes and offences of the kind enumerated insection 6 (o) to (d) which the Chairman may of his own motion refer to the Board orsuch disputes and offences which the parties desire should be referred to the Board.Disputes and offences of the kind enumerated in section 6 (a) to (d) which are notreferred to a Board by either one or other of the two methods mentioned abovewould ordinarily be justiciable by the established courts, even without therequired certificate. The proposition therefore that every dispute or offenceof the kind enumerated in section 6 must in the first instance be referred toa Conciliation Board and a certificate obtained from the Chairman, beforeproceedings can be instituted or entertained in an established court of law, isa proposition not warranted under the provision of the law.”
Held further, that, even assuming that the failure to produce the Chairman’scertificate before the ease was instituted constituted an irregularity, it was onlya procedural defect that was curable under section 425 of the Criminal ProcedureCode.
-AlPPEAL from a judgment of the Magistrate’s Court, Gampaha.
E. R. 8. R. Coomartmoamy, with V. B. Weerasekera and C. Chakra-darant for the accused-appellant.
V. 8. A. Pullenayegum, Senior Crown Counsel, with Lalith Rodrigo>Crown Counsel, for the Attorney-General.
LXXI—6
Cur. adv. vull
122ALLES, J.—Wiclcrtmaralchi v. Inspector oj Police, NiUambuwa
September 23, 1968. Axxes, J.—
This appeal raises a question affecting the jurisdiction of a Magistrateto try an offence specified in the Schedules to the Conciliation BoardsAct, No. 10 of 1958.
The accused-appellant, a school teacher, was charged with causingsimple hurt on 14th February 1966 to one Deonis Appuhamy byassaulting hnn" with a camera, an offence punishable under section 314of the Penal Code- After a trial lasting three days, at which both theprosecution and the defence were represented by Proctor and Counsel,the Magistrate reserved his order for 20th February 1967, on which datehe found tlie charge proved and convicted the accused. He sentencedthe accused to pay a fine of Rs. 35 and in default imposed a sentence oftwo weeks’ rigorous imprisonment. The learned Magistrate has examinedthe evidence with care before arriving at a finding adverse to theaccused-appellant and Counsel, at the hearing of the appeal, has notsought to canvass the Magistrate’s finding on questions of fact or to arguethat the. conviction cannot be supported on the evidence led in the case.
It wa$ submitted in appeal that the Magistrate acted without juris-diction in view of section 14 (1) (b) of the Conciliation Boards Act andthat he should not have entertained the Police plaint in the absence of acertificate that the alleged offence had been inquired into by a ConciliationBoard and had not been compounded. This point was not raised at thetrial nor even in the petition of appeal and the only evidence in supportwas filed in this Court in the nature of affidavits eight months after theappeal was filed. If the point taken by Counsel is entitled to succeed,it would mean that the present proceedings will have to be quashed andfresh proceedings taken in the Magistrate’s Court, only if the offencecannot be compounded after inquiry by a Conciliation Board, in respectof au offence committed as far back as February 1966.
The affidavits filed in this Court establish that the offence wascommitted in the village of Bogamuwa within the area covered bythe Conciliation Board of Oyaboda Peruwa established by the Ministerof Justice under the provisions of the Act. An acceptance of Counsel’ssubmission would have the effect of completely ousting the jurisdictionof a Magistrate’s Court in respect of the offences specified in the Schedulesto the Conciliation Boards Act in such areas where Conciliation Boardshave been established by the Minister. I am unable to agree with sucha broad proposition. Indeed such a proposition would be tantamountto an erosion of the jurisdiction vested in the established courts of law.I entirely agree with the observations of Basnayake, C.J. in Asiz v.Thondatnan1 that “the right of a citizen to invoke the aid of the courts is
one thatis so fundamental that it cannotbe taken away
even by our legislature itself ”, I do not think however that the Con-ciliation Boards Act has the far-reaching consequences which learnedCounsel for the appellant has invited me to accept.
1 {1959) 61 N. L. R. 217222.
ALLES, J.—WickrenuiTutchi v. Inspector oj Police, Xittumbicwa123
The Act was intended to provide an expeditious and inexpensive meansof settling disputes between parties without the necessity of havingrecourse to the complicated process of a law suit. It was no doubt asalutary piece of legislation, which enabled subjects to resolve theirdisputes in a simple and effective mannar. Conciliation as an alter-native to the settlement of disputes and the compounding of offences ina court of law is a procedure that deserves to be encouraged but the Actnever made any pretensions that the jurisdiction of the established courtsshould thereby be ousted. If, for instance, the parties to anv disputeprefer to have their dispute settled by an established court presided overby a judicial officer, there is nothing in the Act which would prevent, themfrom seeking such a settlement, although it would have been open tothem to do so by invoking the assistance of a Conciliation Hoard. Theright of the subject to seek redress for any grivance from the establishedcouits of law is a right that is fundamental and should not in any way hefettered.
It is for that reason, I presume, that T. S. Fernando, J. in Sarmrasinghc
v. Samarasinghe1. while conceding the right of the subject to invoke
the assistance of the courts of law, stated that what the Act seeks to do
is only “to place a bar against the entertainment by Courts in
certain stated circumstances of civil or criminal actions, unless ( here is
evidence of an attempt first made to reach a settlement Those
stated circumstances are not present in the instant case, and therefore
section 14 (1) (6) has no application to the facts of this case.
*
The bar to the institution of certain civil actions or prosecutions forcertain offences mentioned in section 14 is in connection with civildisputes and offences that may be referred to Conciliation Boards undersection 6. Section 14 (1) (a) specifically refers to disputes to which para-graphs (a), (6) and (c) of section 6 applies. No reference to section 6 ismade in section 14 (1) (d) and (c) but it is reasonable to infer that theoffences specified in these two sub-sections must be to the offencesenumerated in the. Schedules to the Act and mentioned in section 6 (d).I am unable to agree with Mr. Coomaraswamy’s submission thatsection 14 must be considered in isolation without reference to sections 0and 12 of the Act, nor do I think that the Legislature ever intendedthat, in every case, the jurisdiction of the Magistrate to try the offencesspecified in the Schedules to the Act in a Conciliation Board area wasto be dependent on a certificate being obtained fi-om the Chairman ofthe Panel of Conciliators.
» (1$67) 70 N. L. R. 276 at 278.
124ALLES, J.— Wickremarutchi v. In spector oj Police, Nitturnbuwa
Section 6 reads as follows :—
“ The Chairman of the Panel of Conciliators constituted for anyvillage area may, and shall upon application made to him in that behalf,refer for inquiry to Conciliation Boards constituted out of that Panelthe following disputes and offences.”
There is thereafter an enumeration of the disputes and offences that canbe inquired into by a Conciliation Board. Section 6 therefore, in myview, contemplates that the only disputes and offences which can boreferred for inquiry to a Conciliation Board, are such disputes and offencesof the kind enumerated in section 6 (a) to (6) which the Chairman may ofhis own motion refer to the Board or such disputes and offences which theparties desire should be referred to the Board. Disputes and offences of thekind enumerated in section 6 (o) to (d) which are not referred to a Boardby either one or other of the two methods mentioned above wouldordinarily be justiciable by the established Courts, even without therequired certificate. The proposition therefore that every dispute oroffence of the kind enumerated in section 6 must in the first instance bereferred to a Conciliation Board and a certificate obtained from theChairman, before proceedings can be instituted or entertained in anestablished court of law, iB a proposition not warranted under theprovisions of the law and one which I am unable to accept.
Counsel for the appellant sought to draw an analogy from the provisionsof section 102 (3) of the Trusts Ordinance (Cap. 87) and section 56 of theDebt Conciliation Ordinance (Cap. 81) which, according to him, precludeda Court from entertaining an action in certain circumstances. I do notthink that the provisions of these two Acts are helpful to the appellant.Tn the one case, the law requires a petition to be submitted to the Govern-ment Agent for relief before an action is entertained, and in the other, theCourt is precluded from entertaining an action when a matter is pendingbefore the Debt Conciliation Board. In Samarasinghe v. Samarasinghe(supra) the parties had referred their dispute to a Conciliation Board but.the plaintiff instituted action in the District Court, while proceedingswere pending before the Conciliation Board and before the certificate wasissued. In the circumstances, T. S. Fernando, J. with whom Siva Supra-maniam, J. agreed, felt himself bound to accept the plea of the defendantthat the action could not have been instituted by the plaintiff orentertained by the court without the production of a certificatefrom the Chairman of the Panel of Conciliators. Those considerations donot apply in the instant case and in my view the present case is oneto which the provisions of section 14 (1) (6) have no application.
Mr. Pullenayeguro, for the Crown, further submitted that, evenassuming that there was an irregularity in the production of thecertificate before action was instituted, this was only a proceduraldefect that was curable under section 425^of the Criminal ProcedureCode. I am inclined to agree. Section 425, inter alia, provided for the
Ttkiti v. Lamaya12u
dismissal of an appeal if any error, omission, irregularity or want ofsanction has not occasioned a failure of justice. The absence of thecertificate in this case, if it can be called an irregularity, would besimilar to the want of sanction under section 147 of the CriminalProcedure Code. It only relates to the exercise of jurisdiction by aMagistrate’s Court as distinct from the conferment of jurisdiction andtherefore would be curable under section 425. Crown Counsel citedin support the Divisional Bench case of AttapaUu v. Punchi Banda1and the decision of the English courts in Price v. Humphriesa. Inboth these cases, the Court recognised the distinction between anobjection which goes to the merits of the case and one which refers toprocedure. The irregularity complained of in both cases was the wantof the necessary authorisation from a third party before proceedingswere instituted—a procedural irregularity which did not occasion afailure of justice. The same considerations apply in the present case.
The appellant's objection, therefore, to the competency of theMagistrate to try the case fails, and the appeal must be dismissed.
Appeal diemisse/l.