110-NLR-NLR-V-19-THE-KING-v.-SAMARAWIRA.pdf
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[Full Bench.]
Present : Wood Benton C.J. and Shaw and Ennis JJ.
THE KING v. SAMABAWIBA,
114—D. C. (Grim.) Negombo, 11,240.
Contempt of court—Interference with the possession of .receiver appointedby Court—Power of District Court to punish.
Possession of land by a receiver appointed by a District Courtis possession of the Court, and contumacious interference with thepossession of the receiver is punishable as a contempt of court.Such contemptuous interference ex facie curia with the possessionof the receiver is punishable by the Supreme Court only, and notby the District Court.
T
HIS case was reserved for argument before a Bench of threeJudges by Ennis J. The facts appear from the judgment of
the Chief Justice.
J. S. Jayrwardene (with him Oooue.tilleke), for aocused, appellant.—The jurisdiction conferred on the Supreme Court in matters ofcontempt is governed by section 51 of the Courts Ordinance, whichespecially provides for cases in which the lower courts have no-jurisdiction under section 59 of the same Ordinance.
Section 59 provides only for two classes of cases. The commaafter the word “ respectively J’ does not indicate three classes ofcases. Punctuation is no part of a statute (Shaw J. referred toMaxwell on the Interpretation of Statutes).
Section 59 has always been construed in the manner submitted.Counsel referred to IN. L. R. 49, 1 N. L. R. 181, 1 G. W. R. 195,2 S. C. R. 39, 8 N. L. R. 343, 2 S. C. R. 145, 1 Bal. Notes of Cases 52.3 Bal. Notes of Cases 38.
Section 59 is exclusive and gives only a limited jurisdiction toDistrict Courts (Ennis J.: —A District Court is a Court of Becordand must have the same power's as a Court of Becord in England).It is only the Superior Courts of Becord in England that can exercisethe jurisdiction contended for by the Crown. A District Court is.an'inferior Court (section 440 of the Criminal Procedure Code).
S. Obeyesekera. C.C.; for the Crown.—Section 59 confers only aspecial jurisdiction. It does not affect the general jurisdiction of aCourt- of Becord. Counsel referred to 7 S. C. C. 203, 3 Lor. 36. andRamanathan (1862) 196. Bonser C.J. in 1 N. L., R. 306 did notaccept the construction placed on section 59 "in I N. L. R. 49.Section 59 must be construed to include three different classes ofcases.
1917,
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1017.Jayewardene, in reply.—There were conflicting decisions prior to
The King v Courts Ordinance (2 Bel. & Vand. 152, 2 8. C. C. 192). There is>!amarawira no procedure provided for the exercise of any other than the specialjurisdiction (section 792 of the Civil Procedure Code). The casereported in 1 N. D. 12. 49 is a Pull Court case, and is binding on theFull Court.
Cur. adv. vult.
June 20, 1917. Wood Benton C.J.—
This case was referred by my brother Ennis to a Bench of threeJudges for the determination of two points of law, viz., (i.) whetherunder the Courts Ordinance, 1889/ section 59, or otherwise, aDistrict Court has power to punish as contempt of court interferencewith the possession of land by a receiver appointed- by the Court;and (ii.) whether the appointment of the receiver in the present casewas itself invalid. It was agreed at the argument of the appealthat the latter of these questions should be dealt with by mybrother Ennis sitting as a single Judge, and it is only necessary,therefore, to consider the former.
I entirely agree with the learned District Judge that the possessionof a receiver is the possession of the Court, and that contumaciousinterference with that possession is punishable as contempt. That isthe law of England/ and I see no reason to doubt but that it is also thelaw of Ceylon. The point, indeed, ,is not devoid of local authority.3But the serious question that arises on the facts in the presentcase is whether contemptuous interference ex facie curies with thepossession of a receiver is punishable by the District Court or onlyby the Supreme Court. Section 59 of the Courts Ordinance, 1889/is in these terms:“Every District Court, Court of Bequests,
and Police Court shall, for the purpose of maintaining its properauthority and efficiency, have a special jurisdiction to take cognizanceof, and to punish by the procedure and with the penalty in thatbehalf by law provided, every offence of Contempt of court com*mitted iii the presence of the Court itself, and all offences whichare committed in the course of- any act or proceeding in the saidCourts respectively, and which are declared by any law for the timebeing in force to be punishable as contempts of court.”
This section is obviously capable of two different constructions.It may mean either that the District Court may punish as contemptoffences in facie curies, or offences (a) committed in the course ofan act or proceeding in the District Court which (b) are declaredto be so punishable by any law for the time being in force; or thatthe punitive powers in the District Court extend to offences (a)in facie curies, or (b) committed in the course of any act or proceedingin the District Court, or (c) declared punishable by the District Courtby any law for the time being in force.
1 No. 1 of 1S89.2 Sec Oswald on Contempt, 2nd ed., pp., 76 and 77.
s Silva v. Wijeyesinghe, (I860) 7 S. C. C. 203.
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After careful consideration of the language of section 50, 1 thinkthat it should be construed in the former sense. The fact that thesection provides that District Courts and Courts of Bequests shallbe Courts of Becord does not show that the Legislature intended toconfer upon them unlimited jurisdiction in matters of this kind.The County Courts in England have been made Courts of Becordby statute, but their- jurisdiction to punish for contempt does notextend to acts done ex facie curia.1
But the point appears to me to be really covered by the decision-'of the Full Court in Annamalay Ghcity v. Guneratne,2 in whichsection 59 of the Courts Ordinance, 1889,3 was expressly construedin this sense. In the older cases prior to the Courts Ordinance,1889,8 a different view of the then existing law was no doubt adopted,4.and it is singular that in Pieris v. Fernando5 Bonser C.J., withwhose judgment Withers J., who had delivered the leading judgmentin Annamalay Chatty v. Guneratne,2 concurred, incidentally treatedthe construction of section 59 of the Courts Ordinance as if it werestill res Integra. Moreover, in In re Ferguson,6 also a decision ofthree Judges, there are passages which seem to indicate thatobstruction to ojB&cers of the Court in the execution of its processfalls under the category of offences committed in facie curia.But, on the other hand, the interpretation of section 59 of the CourtsOrdinance, 1889,3 laid down in Annamalay Ghetty v. Guneratne 2was accepted by Wendt J. in Perera v. Perera7 by Pereira J.
C. Colombo, 13,953,s and by Shaw J. in Rengasamy v. Beale.
It seems to me that the case of Annamalay Ghetty v. Guneratne 2 isbinding upon us, and that on authority, as on principle, the learnedDistrict Judge had no jurisdiction to convict the appellant.
With this expression of opinion, I would remit the appeal to befinally disposed of by my brother Ennis.
Shaw J.—
The question referred to the Full Court for decision in this case iswhether a District Judge has power to punish summarily, as acontempt of Court, in interference with the servants of a receiverappointed by tbe Court.
The District Courts are the creation of the Charter of 1883, andare the descendants of the Provincial Courts established by theearlier Charters and Proclamations.
The Provincial Courts had apparently no inherent power topunish for contempt, and by Regulation 2 of 1816 all cases of con-tempt of such Courts had to- be transmitted to the Advocate Fiscal,
Silva v. Lefroy, (1873) L. R. 8 Q. B. 133;
R. v. Jordan, (1888) 57 L. J. Q. B. 483.
(1895) 1 N. L. R. 49.
No. 1 of 1889.
Silva v. Wijeyesinghe (ubi sup.) and cf.
In re Brown, (1858) 3 Lor. 36; LebbcSatbo v. Marikar. 1862) Rant. 196.
» (1895) I N. L. R. 306.
(1874) 1 N. L. R. 181.
(1906) 8 N- L. R. 343.
s (1915) 3 Bal. N. G. 38.9 (1915) 1 C. W. R. 195.
ldit.
Wood
Rbntok C. J.
The King v.iSamarawira
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1017.
Shaw J.
The King v.Samaratvira
for him to decide whether the accusation should be tried by theSupreme Court or referred to an inferior jurisdiction; in which casethe matter was referred to the nearest Court to that in which theoffence occurred. This regulation was amended by RegulationNo. 15 of 1820, which authorized the Provincial Courts to punish" all contempts committed before them before tlfeir own view, andalso upon due proof all contempts of their process or of the officersacting in the execution thereof. ’ ’
The Charter of 1833 establishing District Courts is silent as towhether they were to be considered as Courts of Record or not,, andas to what, if anj', powers they should have to punish, for contemptof court.
By the rules and orders framed under the Charter and publishedwith it power was given to the District Judges to punish 11 allcontempts committed before themselves, and also upon due proofall contempts of their process or of their officers acting in theexecution thereof."
This rule was repealed by a subsequent rule of October 21, 1844,with the result that the jurisdiction to punish for contempt, ifany, was left to be inferred from the Charter itself or from thegeneral law.
Courts of Record are those the orders and judicial proceedings ofwhich are enrolled for a perpetual memorial and testimony, and therecords of which are absolutely authoritative, as distinguished fromCourts not of record, the acts of which may be evidenced by rollsand records, but are not established absolutely thereby, and mustbe proved like other facts (see Encijclopcedia of Laws of England434).
The Supreme Courts of Record in England have always had fullpower to deal summarily with contempts of their authority, andthe power dates back to the time when the Sovereign personally, orhis immediate representative, sat to administer justice (see ex parteJoliffe, 42 L.J.Q.B. 121) : “ It is laid down b high authorities, andis according to the reason of the thing, that every Court of Recordhas power to fine and imprison for contempt committed in the faceof the Court, while the Court is sitting in the administration of justice.Such a power is obviously necessary for the administration ofpublic justice. But it is a very different thing to say that a Courtshall have power to fine and imprison for contempts not committedin the face of the Court, and not amounting to an actual obstructionof the course of justice, but only to the use of contumelious language,or the publication of articles or comments reflecting on the conductof the Judge. It is laid down by Hawkins (Pleas of the Crown)t andother writers of authority that the power of committing for contemptcommitted in the face of the Court is given to Inferior Courts,but it is nowhere said that they have power to punish contemptscommitted out of Court." (Cockburn C.J. in ex parte Jolliffe (supra).)
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The District Courts established under the Charter of 1838 have 1917.always been regarded as Courts of Record, and notwithstandingT
the absence of direct authority in the charters and rules to deal with
cases of contempt, such a jurisdiction was frequently exercised bythem as being an inherent power, and in the case In the Mater ofthe Application of John Ferguson for a Writ of Prohibition againstthe District Judge of Colombo,1 the Full Court held that, althoughthe District Courts, being Courts of Record, had an inherent powerto punish summarily contempts in the face of the Court, whichincluded “ any insult to the Judge while in the discharge of hisduties, such as interruption of the proceedings of the Court, dis-obedience to its lawful orders or process, obstruction to its officersin the execution of its process or orders, and other acts of a likenature.” Tet, being Inferior Courts of Record, they had not thefull jurisdiction to punish all descriptions of oonteznpt such as ispossessed by the Superior Courts in England and the Supreme Courtin Ceylon.
In this condition of the law the Courts Ordinance, 1889, waspassed. This Ordinance is not a mere consolidation Ordinance,but, as the preamble states, it is an Ordinance ** to consolidate andamend the laws relating to the constitution, jurisdictions and powersof the Courts.”
The jurisdiction of the Inferior Courts in respect of ^contemptof court is set out in section 59, which runs as follows: ” EveryDistrict Court, Court of Requests, and Police Court shall, for thepurpose of maintaining its proper authority and efficiency, have aspecial jurisdiction to take cognizance of, and to punish by theprocedure and ^ith the penalties in that behalf by law provided,every offence of contempt of court committed in the course of anyact or proceeding in the said Courts respectively, and which aredeclared by any law for the time being in force to be punishable ascontempts of court.”
Section 381 of the Criminal Procedure Code, 1898, provides forthe summary punishment by the Inferior Courts of certain offencesin the nature of contempts of court ” committed in view of presenceof ” the Court.
These are the offences under section 173 of the Penal Code ofrefusing to produce documents, under section 176 of refusing totake the oath, under section 177 of refusing to answer questions,under section 178 of refusing to sign a statement, and under section223 of insult or interruption to a public servant sitting in any stageof a judicial proceeding.
Section 380 of the Criminal Procedure Code provides that certainother offences, in the nature of contempts of court, referred to insection 147, clauses (b) and (c), shall be sent for inquiry and trialto the nearest Police Court, and finally, after providing the procedure
33-
i (1874) I N. L. R. 181.
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1017 by which the summary proceedings shall be governed by section 884,JShaw J. the Code provides that, except as provided, “ no District Judge or:—- Police Magistrate shall try any person for any offence referred to inIsampra^a section 147, clauses (6) and (c)’* (which include all the offencesmentioned in section 881), “ when such offence is committed beforehimself or in contempt of his authority or is brought under his noticeas such District Judge or Magistrate in the course of a judicialproceeding. ”
We are asked on behalf of the respondent to the present appeal tohold that section 59 of the Courts Ordinance, 1889, is not exhaustiveof the powers of the District Courts to punish summarily for con-tempt, and to say that those Courts still have an inherent powerto punish summarily all contempts such as are referred to in the.judgment in Ferguson’s case, cited supra, although such contemptsmay not have been declared by any law for the time being in forceto be punishable as contempts of court. We are also asked-to read. section 59 as intending to, give District Courts, Courts of Bequests,and Police Courts powers to punish summarily three classes ofcontempts: (1) contempts committed in the presence of the Courtitself, (2) contempts committed in the course of any act or pro-ceeding in' the Court, and (3) offences declared by any law to bepunishable as contempts of court.
I do not think we can do any of these things. The Courts Ordi-nance, 1889, is, as I said before) not merely for the purpose of-con-solidating, but also of amending the law, and in my opinion section 59is intended to be exhaustive of the powers of the Inferior Courtsto punish for contempt, and to hold otherwise would rendernugatory and meaningless the provisions of sections 180, 181, and184 of "the Criminal Procedure Code, 1898, cited above.
To read section 59 of the Courts Ordinance in the mannersuggested, it would be necessary to read- the last sentence of thesection “ and which are declared by any law for the time being inforce to be punishable as contempts of court ” as “or which- aredeclared,” &c., or to interpolate the words “ also all offencesafter the word “ and.” To so alter the wording of a legislativeenactment would be contrary to be first principles of the construe-,tion of the Statutes, if sense can be made in any other way.
If there is any difficulty arising from the presence of the commabefore the final paragraph of the section, as is contended on behalfof the respondent, that comma must be disregarded, for it is a well-established rule that punctuation is not to be taken as part of – aStatute (see Maxwell on Interpretation of Statutes 62).
Even had zny own opinion on the point referred to us beendifferent, I should have felt constrained to come to the same con-clusion that I have, because the case appears to me to be clearlycovered by the Full'Court decision in Annamalay Chetty c. Ouneratne•.*
* (1896) 1 N. L. R. 49.
In that case it was held that disobedience by a judgment-debtor of 191T.an order made by the District Court under section 219 of the Civil Shaw J.Procedure Code for his examination, is not punishable by the District King *Judge as a contempt of court, the reason given in the judgment of SamarawiraWithers J., and agreed to by Browne J. and Lawrie A.C.J., beingthat the Court’s jurisdiction to deal with offences of contempt waslimited to the provisions of section 59 of the Courts Ordinance andto special provisions in the Civil Procedure Code, and that dis-obedience to an order of the kind in question by a judgment-debtoris not made punishable by any law as a contempt of court.
This decision has been recognized as law and followed insubsequent cases, of which I will mention Perera u. Per era 1 andRengasamy v. Beale,3 and is binding on this Court.
I wuold answer the -questions referred to us by saying that theDistrict Judge had, in the present case, no jurisdiction to punish theappellant summarily for contempt of court.
Enhis J.—
I have had the advantage of reading the judgments of my Eordthe Chief Justice and my brother Shaw, and agree with them thatthe District Court had no power to try this case. -Section 59 of theCourts Ordinance must be considered with sections 380, 381, and384 of the Criminal Pocedure Code, and, in the light of thosesections, section 59 must be read as giving District Courts the lessextensive jurisdiction.
I need not further consider the second point contended for bythe counsel for the appellant.
I allow the appeal and set aside the conviction.
Set aside.
» (ISM) 8 N. U R. 848.
* (1915) 1 C. W. R- 195