095-NLR-NLR-V-29-DEPUTY-FISCAL,-KEGALLA-v.-TIKIRI-BANDA.pdf
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Present: Jayewardene A.J.
DEPUTY FISCAL, KEGALLA u. TIKIBI BANDA.
316—P. C. Regatta, 8,930.
Warrant—Arrest of judgment-debtor—Not signed by Judge—Validity—Escape from legal custody—Penal Code, $. 220.
A warrant, which is issued for the arrest of a judgment-debtor interms of section 219 (2) of the Civil Procedure Code and which isnot signed by the Judge, is void.
A person who escapes from the custody of an officer-purporting toexecute such a warrant is not guiity of an offence under section 220aof the Penal Code.
^J^PPEAL from a conviction by the Police Magistrate of Kegalla.Navaratnam (with de Zylva), for accused, appellant.
Ferdinands, for complainant, respondent.
Schokman, C.C., for Attorney-General, as amicus curiae.
July 11, 1928. Jayewardene A.J.—
This case was first argued before me on June 15, when there wasno appearance for the respondent, and' I desired that notice beissued to the Attorney-General. Counsel* appeared for the respond-ent at the second hearing, and I heard Crown Counsel on behalf ofthe Attorney-General as amicus curiae.
. The accused was charged with escaping from the custody of aFiscal's poen in which he was lawfully detained, having beenarrested under a warrant in civil case No. 6,856 of. the District Courtof Kegalla, an offence under section 220a of the Penal Code. Theaccused was convicted and sentenced to pay a fine of Bs, 100.
1928.
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jigs.Thefacts of the arrest and escape were not seriously disputed.
;Theonly question for decision is whether the warrant on which
dtobAJhe was arrested was good in law. The warrant was issued in a
civilcase—D. C. Kegalla, 6,856, under section 219 (2) of the Civil
Procedure Code, which empowers a Court to issue a warrant for theKegaUa t. arrest of a judgment-debtor who fails to comply with an orderTikiri Bandaunder that section for his attendance. The warrant was
issued in accordance with an order of the Court. It did not bearthe signature of the District Judge, but at the foot were the words
By order of Court, (signature) Secretary.”
It is contended that the warrant was invalid inasmuch as it wasnot signed by the Judge, and that there was no legal arrest.
Chapter XVH of the Civil Procedure Code contains provisionsin regard to witnesses and their attendance. The Court, in the firstinstance, would issue a summons under section 121. The summonsmay be signed by the Secretary, according to form No. 32 inschedule II. If the witness fails to comply with the summons, theCourt may order him to be arrested and brought before the Court,under section 137. A form of warrant of arrest against a witnessfor disobedience to summons is given in schedule II. It is formNo. 39. The warrant must, according to that form, be signed bythe Judge.
So, again, the warrant for the arrest of a judgment-debtor undersection 305 has to be signed by the Judge, as shown in form No. 60.
The summons to a person accused of contempt of Court undersection 793 must be signed by the Judge, and so must the warrantunder section 794 (forms 132 and 133).
It would thus appear that a warrant must, under the CivilProcedure Code, be signed in every case by the Judge himself. Anenactment giving a power of committal for non-payment of a debtis a highly penal one, and must be strictly construed. (Costa v.Perera.1) Lord Esher remarked in Scott v. Morley 2: ” If you treatthe Debtors Act as an Act which authorizes the Court to commitpeople to prison, then you must construe it strictly. It is a highlypenal Act, affecting the liberty of the subject.”
In Wills v. Sholay Kangany,3 de Sampayo J. commented on theimpropriety of issuing warrants on insufficient material. Heobserved: ” the issue of a warrant is a serious matter, and theMagistrate should exercise his own independent judgment on thefacts before he does this judicial act.” His observations applyequally to the issue of warrants in civil cases. The Judge must seethat the warrant as issued contains on the face of it all the essentialparticulars. The person against whom the warrant is sought to beexecuted is entitled to see the warrant for the purpose of satisfying
1 {1913) 17 N. L. R. 319.8 (1337) 20 Q. B. D. 120t 126.
8 (1915) IS N. L. J?. 443.
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himnftlf as to these particulars, for example, as to the amount, or
•that the person executing the warrant against him was legally Jaybwar-
authorized so to do. The Court should not delegate this function
to the Secretary or to any other person.Deputy
In Sheik Naeur v. Emperor,1 where the returnable date on thewarrant was July 26, but it had been extended to August 8, and TikiriBandathat date did not appear on the warrant, it was held that thewarrant was bad on the face of it and failed to show that it could beexecuted at the time when the resistance was offered.
In the present case it is to be noted that the warrant was return-able on July 14. It bears an endorsement: “ 11th August, .1927—extended and reissued for 8 Sept. 1927 This endorsement ismerely signed by the Secretary, and does not even contain the words:
“ By order of Court ”. The accused was arrested on August 17.
This endorsement was, I am of opinion, both informal and irregular.
In Hendrick v. Fonseka,2 the accused escaped, when he wasarrested on a civil warrant endorsed by the Deputy Fiscal ofColombo, to the Deputy Fiscal of Kalutara, by means of a rubberstamp, and it was held that the mere use of a rubber stamp in aproceeding which affected the liberty of the subject did not consti-tute an endorsement and the accused was acquitted. A provisionrequiring a Judge’s signature must be strictly complied with, andeven a Judge’s initials cannot be regarded as his signature. Wherein foreclosure proceedings a notice had to bear the seal and officialsignature of the Judge, under the Indian Regulation 17 of 1806,section 8, in order to render the conditional sale absolute, but thenotipe only bore the initials of the Judge, the Privy Council heldthat it was not a compliance with the Regulation [Madho Persad v.
Oajudhar,3 followed in Kubra Bibi v. Wajid Khan*).
The rule as to the proper observance of formalities applieswhether the warrant of arrest is issued in a civil or a criminalcase.
Under the Criminal Procedure Code, the person executing awarrant of arrest must notify the substance of the warrant to theperson arrested, and, if so required, show him the wan*ant or acopy thereof signed by the person issuing the same. In Empress v.
Amor Nath,5 it was observed that, this being the law in respect of asupposed criminal, it followed, a fortiorit that an arrest under civilprocess must be governed by a similar restrictive provision.
The interpretation of all statutes must be favourable to personalliberty. (Hull Dock Co. v. Brown *) A warrant issued on an orderwhich is unlawful (Telesinghe v. Anthony T) or issued ultra vires(iSapapathipillai v. Alagaratnam8) cannot form the .basis of a criminal
1 (1909) 37 Cal. 122.* (1883)6 AU. 318.
(1917) 4 C. W. R. 122.• (1831)2 B. <b Ad. 39.
(1884) 11 Cal. 111.5 (1893)2 8. 0. R. 129.
(1893) 16 All. 59.• (1922)24 N. L. R. 56.
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Jayewar-OBN2 AJ.
prosecution. When a warrant is ex fade defective, ■ the publicservant executing it cannot be said to be acting in the discharge ofa public function, nor is the person arrested in lawful custody(Menikrala v. Kiribanda 1 and Silva v. Pedrishamy 2).
Where a warrant of arrest is not signed as required by law, a
DeputyPimat,
KcgttBo'V:
TikiriBanda public servant is not acting under lawful orders, in the mannerauthorized' by law, and the person arrested is not being lawfullydetained. (Abdul Gafur . v. Empress* and Mahajan Sheik v.Emperor.4)
To sustain a conviction, the officer executing the warrant must beclothed with all the authority necessary to entitle him to make alawful arrest. (Rex v. Levesque.5)
In my opinion the absence of the District Judge's signature madethe warrant void, and there was consequently no legal arrest ordetention and no offence has been committed.
I set aside the conviction, and acquit the accused.
Set aside.