079-NLR-NLR-V-38-SIVASAMPU-v.-JUAN-APPU.pdf
Sivasampu v. Juan Appu.
369
1937
Present: Abrahams CJ., Maartensz and Soertsz JJ.SIVASAMPU v. JUAN APPU.620—P. C. Chilaw, 1,368.
Charge—Offence laid under by-law or regulation—Publication in Gazette—Proof of rule—Evidence Ordinance, s. 57—Interpretation Ordinance,No. 21 of 1901, s. 11.
Where a charge is laid under a statutory rule, regulation, or by-lawwhich is required by law to be published in the Government Gazette, theprosecution is not bound to produce the Gazette in which the rule or regu-lation or by-law appears in proof thereof in order to establish the charge.
There would be a sufficient compliance with the requirements of thelaw if in the complaint or report to Court there is a reference to theGazette in which the rule invoked appears.
Marambe v. Kiri Appu (2 C. L. W. 122) and Inspector of Policev. Punchirala (5 C. L. W. 38) overruled.
T
HE accused was charged with having failed to affix a board bearing
the name of the owner legibly painted in white on a black ground
to the right side of the tent in breach of section 7a of the by-laws framedunder section 18 of the Vehicles Ordinance, No. 4 of 1916, and publishedin Government Gazette on August 17, 1917. The summons was issued andthe accused pleaded to the charge. At the conclusion of the trial, thedefence brought to the notice of Court that the actual Gazette was notproduced. The learned Magistrate acquitted the accused in view of thedecision in Marambe v. Kiri Appu
The complainant appealed with the sanction of the Attorney-General.Moseley J. who heard the appeal referred the case to a Bench of threeJudges in view of the conflicting decisions.
Ilangakoon, K.C., A.-G. (with him Crossette-Thambiah, C.C.), forcomplainant, appellant.—This case has been referred to a Bench of threeJudges by Moseley J. to decide whether the Gazette containing the by-lawshould be produced when a person is prosecuted for a breach of theby-laws. There has been a considerable conflict of opinion on this point.
[Abrahams C.J.—Are you going to argue that the Gazette need not beproved ?]
Yes. The fact that the learned Magistrate did issue the summonsshows that he had taken sufficient notice of the Gazette.
[Abrahams C.J.—There is this difference, namely, that the Courtsmust take judicial notice of the Ordinances, but someone must provethe regulation.]
The Evidence Ordinance says that the Courts of Law must take judicialnotice of laws, regulations, &c., when they are published.
[Abrahams C.J.—There must be the publication. It is the duty ofthe Magistrate to satisfy himself that there was a law before issuingsummons. ]
That is so. If he was not satisfied he can call for it. After takingsufficient notice, he cannot say that the complainant did not produce theGazette. All Gazettes are available in Court. So long as the place where
1 (1932) 2 C. L. W. 122
370
Sivasampu v. Juan Appu.
the rules are is specified, it is sufficient. They need not be produced inevery case. Considering the number of excise cases, it would be animpossible task to produce them always.
[Abrahams C.J.—Suppose they are not given the force of law. Thenthey have to be produced before the Magistrate.]
In England it has been held that the whole Gazette must be produced.Section 11 (1) (e) of the Interpretation Ordinance, No. 21 of 1901, coversthis case.
[Abrahams C.J.—'What about sub-section (f) ? Does not that saythat it must be produced ?]
That is if the Magistrate is not aware of it. Publication is notice ofthe existence of the laws. Laws published in the Gazette must be takento be known. Once the particulars of the offence, the rule and the numberand date of Gazette are given, it is sufficient evidence for section 78 of theEvidence Ordinance.
[Abrahams C.J.—Would it be judicial notice or would it be that hishaving issued summons shows that he had looked into it ?]
Under section 57 (1) of the Evidence Ordinance, the rules need not bepublished.
[Soertsz J.—That is the Court may take judicial notice under section.56 or call for it under section 57.]
The Court will presume that the rule is made, unless it is challenged orunless it manifestly cannot be made. In cases where the rules need notbe published in the Gazette, they must be proved as regards the makingand contents. These must be proved at the time of the receipt of theplaint, or else the conviction would be bad.
[Abrahams C.J.—Suppose the rules do not exist.]
The general rule is that the prosecution must prove every fact inissue. The existence of the rule must be proved to the satisfaction ofthe Court.
Ameer Ali on Evidence (9th ed.) deals with this point at page 498.If the ordinary man is supposed to know the existence of the law, thenit is not too much to ask the Court to take judicial notice of the fact.
[Maartensz J.—If the charge says that a rule is framed on such a dayby the Municipal Council, is that sufficient ?]
That is sufficient. The Gazette need not be mentioned. It is not alegal requirement. The reference is given as a matter of practice,because there is no other convenient form. The rule and the date musthe given.
[Maartensz J.—You have to prove that it is published.]
Once it is published, it has the force of law, and the Magistrate musttake judicial notice of it. Without the date and the number the chargeis badly framed, but it is not necessary. (De Silva v. Don Francis')In the earlier cases, the point had not been critically examined.(Ekneligoda v. Kiri Banda1}. The other cases in point are :—Peries■v. Theresa Nona", Peachy v. Mastankanny Marambe v. Kiriappu5, Almedav. Singhoappu Inspector of Police v. Punchirala1, Dunuwila v. Ukkuwa
1 (1924) 2 Times 194.5(1932) 2 C. L. W.122.
(1890) 9 S. C. G. 60.’(1936) 5 C. L. W21.
(1927) 8 Ceylon Law Recorder 116.7(1935) 5 C. L. W.38.
(1892) 1 St C. R. 247.’(1936) 6 G. L. W.150.
SOERTSZ J.—Sivasampu v. Juan Appu.
371
May 17,1937. Soertsz J.—
The matter that arises for our decision on this reference is whetherin cases in which a charge is laid against an accused under a rule or aregulation or a by-law which requires publication in the GovernmentGazette the production of the relevant Gazette is imperative. Thisquestion has come up for authoritative decision in consequence of certainconflicting rulings by this Court.
In Marambe v. Kiri Appu1 Macdonell C.J. said “ the charge is defectivein that there was a failure to specify the Gazette containing the ruleswhich the accused is said to have contravened and of course the Gazetteought to have been produced”. Koch J. followed this ruling in Inspector ofPolice v. Punchirala *, and relying on it and the other cases he cited in thecourse of his judgment said “ in a series of decisions it has been heldthat there rests on the prosecution the obligation to produce and provethe rule.”.
But in the case of Peries v. Theresa Nona ”, Lyall Grant J. held that“ the correct way to set out such a notification in the charge is byreference to the copy of the ‘ Ceylon Government Gazette ’ in which itappears.”. In the case of De Silva v. Don FrancisBertram C.J. tookthe same view and dissenting from the ruling of Wood Renton C.J. inLovell v. Dondiya *, held that it was not necessary to produce the ruleunder which the charge was brought because the Court must take noticeof all rules having the force of law.
After careful consideration we find ourselves in agreement with theview of Bertram C.J. and Lyall Grant J. Section 57 of the EvidenceOrdinance enacts that “ the Court shall take judicial notice of thefollowing facts : — (1) All laws or rules having the force of law, now or here-after in force or hereafter to be in force in any part of the Colony ”
and that “ in all these cases, and also on all matters of public
history, literature, science or art, the Court may resort for its aid toappropriate books or documents of reference. If the Court is called uponby any person to take judicial notice of any fact, it may refuse to do sounless and until such person produces any such book or document as itmay consider necessary, to enable it to do so.”. In . England, the lawin regard to this matter appears to be that “ Public General Statute,like the rules of the Common law or general custom of the realm, neednot be either pleded or proved, because the courts are bound ex officioto take judicial notice of them. Production at the trial of a publicgeneral statute is not for the purpose of putting it in evidence, but merelyin aid of the memory of the Court and Jury ” Archibald’s CriminalPleadings, Evidence and Practice, 1934 ed., pp. 408-409. But in the caseof statutory rules, i.e., of subordinate legislation, the matter is governedby special acts such as the “ Documentary Evidence Act ”, 1868, and theRules Publication Act, 1893.
In Ceylon, the effect of section 57 of the Evidence Ordinance is to put“ all laws and rules having the force of law ” on the same footing. But
> 2 C. L. IP. 122.3 {1927) S Ceylon Law Recorder 116.
* 5 C. L. JJ 38.* 2 Times of Ceylon Law Reports 194.
5 4 Leader Law Reports 124.
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SOERTSZ J.—Sivasampu v. Juan Appu.
section 11 of the local “ Interpretation Ordinance ”, No. 21 of 1901,provides that “ where any Ordinance whether passed before or after thecommencement of this Ordinance, confers power on any authority to
make rulesall rules shall be published in the Gazette and
shall have the force of law as fully as if they had been enacted in theOrdinance”. So that inasmuch as the rules of subordinate legislationrequire publication in the Gazette for acquiring the force of law, thereshould be some material before the Court to show that that conditionprecedent has been satisfied. In our view there is sufficient compliancewith that requirement if in the complaint or report to the Court there isreference to the Gazette in which the rule invoked appears, for in thatcase under section 114 of the Evidence Ordinance, the Court maypresume that the Official Acts of stating the rule and citing the Gazette“ have been regularly performed “ (illustration e). The production of theGazette is not necessary unless it is called for in aid of the memory of theCourt or under the last part of section 57. To take the present case,the rule or by-law involved in it is one made under section 18 of theVehicles Ordinance, No. 4 of 1916. In regard to by-laws made under thatsection, section 21 (1) of the Ordinance provides that all by-laws when
made“ shall be published in the Gooerument Gazette, and
shall thereupon become as legal, valid and binding and effectual as if thesame had been inserted in the Ordinance, and all Courts Judges,Magistrates shall take judicial notice thereof”. In the report made bythe prosecuting inspector to Court it is alleged that “ the accused failedto affix a board bearing the name of the owner legibly painted in whiteon a black ground to the right side of the tent in breach of section 7a ofthe by-laws framed under section 18 of the Ordinance No. 4 of 1916 andpublished in the Government Gazette on August 17, 1917, and therebycommitted an offence punishable under section 21 of Ordinance No. 4 of1916 ”. There is here sufficient material for the Court to presumeunder section 114 of the Evidence Ordinance that the rule is correctlystated and that it has the force of law, and for it to act on that presump-tion. The production of the Gazette is therefore not necessary. Nor willthe non-production of the Gazette embarrass the Court at all, for everyCourt is provided with copies of every Gazette and has, moreover, theTight to call for a Gazette in aid of its memory or under section 57 of theEvidence Ordinance by way of proof of the by-law or rule. That is theposition as far as the Court is concerned.
In regard to the accused he is not entitled to claim that a charge laidagainst him under a rule, regulation, or by-law should be supported by a■copy of the Gazette containing it. Section 167 of the Criminal ProcedureCode lays down rules for the framing of a charge. It says that a chargeis sufficiently laid if it states the offence with which the accused ischarged. “ If the law which creates the offence gives it any specificname the offence may be described in the charge by that name only ;if the law which creates the offence does not give, it any specific nameso much of the definition of the offence must be stated as will give theaccused notice of the matter with which he is charged ; and the law andsection of the law under which the offence is punishable shall be statedin the charge”.
Rosemalecocq v. Kaluwa.
373
It is obvious that the charge in this case has been framed in meticulouscompliance with these requirements. I am therefore of opinion that theprosecution had discharged the burden that rested on it by placingbefore the Court material to show the existence of a valid by-law andfacts to establish that the accused had offended against it. It was notopen to the Magistrate to acquit the accused on the ground that “thefailure to produce the Gazette in which the rules are is a vital irregularity•When he issued process, it must be assumed in the circumstances of thiscase that he had taken judicial notice of the by-law and, therefore, undersection 56 of the Evidence Ordinance the prosecution was exemptedfrom the necessity of proving it, for that section says “ no fact of whichthe Court will take judicial notice need be proved”. It was, however,open to the Court to act under the last part of section 57 and to call forthe Gazette if it thought fit. I would therefore hold that the order ofacquittal was wrong. It does not seem necessary to send the case backfor further trial for, as far as the Magistrate is concerned, he appearsto have acquitted the accused not because he had any doubts as to theexistence and validity of the by-law but because he thought on theauthority of Marambe v. Kiriappu (supra), that the production of theGazette was sine qua non. As far as the accused is concerned there is nopoint in sending the case back because he has declared that he calls nodefence. His proctor appears to have relied entirely on the authority ofthat case. There was no cross-examination of any of the witnesses.
I would set aside the order of acquittal and remit the case to theMagistrate for sentence to be passed under section 21 of OrdinanceNo. 4 of 1916.
Abrahams C.J.—I agree.
Maartensz J.—I agree.
Set aside.