125-NLR-NLR-V-59-N.-THAMBOO-Petitioner-and-THE-SUPERINTENDENT-OF-PRISONS-et-al.-Respondents.pdf
SIXXE T.A ZVTB V, J.—Tham boo v. Superintendent of Prisons
573
1953Present: Sinnetamby, J.
N. THAilBOO, Petitioner, and THE STJPERINTENDEHTOE PRTSOXS el al., Respondents. ■
S. C. 122—Application for a Writ of Habeas Corpus.
Hnbena corpus—Scope of writ.
A writ of habeas corpus is not available against an order cf-committal which isbased on a judgment of tho Supremo Court or against a committal after trialby an inferior Court acting within its jurisdiction.
PPL.ICATION for a writ of habeas corpus.
C. S. Barr Kumarahulasinghe, with G. L. L. de Silva, T. W. Rajaratnamand R. R. Nalliah, for the petitioner.
Douglas Jansze, Q.C., Acting Attorney-General, with R. S. Wanasundera,Crown Counsel, and H. L. de Silva, Crown Counsel, as Amicus Curiae.
Cur. adv. vult.
February 21, 1958. Six^etamby, J.—
This application for a writ of habeas corpus is a sequel to the decisionof tho Supreme Court in the case of Afohideen v. Inspector of Police,Petlah1. The decision in that case rendered it imperative for evidence tobe recorded by a Magistrate before a person who has appeared or isbrought before him otherwise than on a summons or warrant is charged.
In the present case the accused had been charged without any evidencebeing recorded as required by that judgment ; he had been convicted atthe conclusion of the trial and sentenced to imprisonment ; he appealedand in appeal the conviction was affirmed but the sentence was reduced.He is now serving the reduced sentence and the present application ismade on the ground that the conviction and sentence by the Magistrateis illegal and void and that therefore he is being held by the prison autho-rities in illegal custody. Even if the applicant succeeds in this applicationit may well turn out to be a pyrrhic victory as he is liable on tho samecharge to be tried over again, but the question that arises is an im-portant ono with far-reaching consequences. I therefore deemed it pru-dent to require the learned Attorney-General to appear as amicus curiaeand assist tin's Court in the determination of this question. He did so andI am'much indebted to him for his help and assistance.
{1957) 59 S. JO. R. 217.
574
SHvI'TETAMBY, J.—Thatnboo v. Superintendent oj Prisons
The first question that calls for decision is whether a vrrit of habeascorpus is available in cases where a person is committed to the prisonauthorities after trial by the duly constituted Courts of law. The firstrespondent in this case, viz. the Superintendent of Prisons, Jaffna-, hasproduced the order of committal on which is endorsed in red ink theorder of the Supremo Court in appeal reducing the sentence. Is theproduction of this order of committal sufficient to discharge the noticethat issued on the first respondent ?
The English rule is that a writ will not be granted to persons committedfor felony or treason plainly expressed in the warrant of committal or topersons convicted or in execution under legal process including personsin execution of a legal sentence after conviction on indictment in theusual course. These provisions aro now incorporated in the HabeasCorpus Act which merely re-stated the common law on the subject. Thelaw applicable in Ceylon is the same as in England. It will thus appearthat ordinarily a writ will not be granted if there is a warrant of com-mittal duly signed by a judge of the Court. The only cases where writshave issued or would issue are cases in which the sentence itself is clearlyillegal—for instance, where an offence is punishable only by a fine butthe Court has imposed a term of imprisonment or where the term ofimprisonment imposed exceeds the maximum provided for the offence.But where otherwise the matter is within the jurisdiction of the Courtthe writ w-ould not lie in England. In this respect the law in England ismuch narrower than that in force in the United States of Americawhere all questions of jurisdiction, as for example territorial jurisdiction,can be brought up for consideration by writ of habeas corpus. Many,therefore, of the decisions of the American Courts would not be applicableto Ceylon and learned Counsel for the petitioner certainly did relyon several American cases.
This question was considered b3T Chaudhuri, J. in the case of BonotnAlly Gupta'. Chaudhuri, J. is a well known authority on the subject andis the author of the textbook bearing his name. He expressed his Mew iuthat case as follows :—
“ I think it is well established that a writ of that nature is notgranted to persons convicted, or in execution under legal processincluding persons in execution of a legal sentence after conviction onindictment in the usual course. It is not granted where the effect of itwould be to review the judgment of one of the superior Courts, wliichmight have been reviewed on a writ of error, or where it would falsifythe record of a Court which shows jurisdiction on the face of it.”
In the case of Janarlhan Reddy v. The State of Hyderabad it was statedthat—‘-
as regards the writ of habeas corpus, if it should appear on theface of the return that a person is in detention in execution of a sen-tence on indictment or on a criminal charge,'that would be a sufficient-answer to the writ-.”
1 (79/7) I. L. Jt. (Calcutta) 733.
SIXXETAMBY, J.—Tkamboo v. Superintendent of Prisons
575
This case Is referred to by Msrkose in his book on Judicial Control ofAdministrative Action in India (p. 166). The same author at page 167goes on to say:—.*
“ In England jurisdiction over the subject matter and the sentenceawarded arc enquired into”'
Chaudhuri, J. in his judgment also referred to the case of King v.Suddis where Grose, J. said :—
“ it is enough that ire find suc-h a sentence pronounced by a Court ofcompetent jurisdiction to enquire into the offence, and with power toinflict such a punishment. As to the rest wo must therefore presumeomnin rite acta.”
he Blanc, J. is quoted as saying :—
“ It is sufficient for the officer having him in his custody to return. to the writ of habeas corpus that a Court having a competent jurisdic-tion had inflicted such a sentence as they had authority to do, and thathe holds him in custody under that sentence.”
Learned Counsel for the petitioner gave to the word “ jurisdiction ” awider connotation than what the English judges intended. He sought togive it the wider meaning which the American judges gave it. In thepresent case for instance he argued that the jurisdiction of the Magistratewill arise only if he had followed the procedure set out in the Code inaccordance with the judgment of the Divisional Bench. I am, however,unable to agree with learned Counsel’s contention. The English casesmake it clear that the word " jurisdiction ” relates to the question ofwhether the Court is empowered by law to try cases of the type in whichthe offender was tried and convicted. In re Ere Parte Ferguson1 Reading, J.put the matter thus :—-.
“ If the jurisdiction exercised by the magistrate is a jurisdictionwhich has been conferred upon him by the statute, then, notwith-standing that he may have cone to a wrong decision on the facts orupon, the law, it is clear that- his decision cannot be questioned by thi3procedure (viz. Habeas Corpus) In the present ease there is no doubt-as to the jurisdiction of the magistrate. It is not- suggested that he wasnot the proper tribunal to deal with the case.”-
It is, I conceive, correct to say that the Magistrate who tried the pri-soner, having regard to the judgment of the Divsional Bench, came to awrong conclusion, on the law when he decided to charge the accused inthis case without first recording evidence. That procedure was at the time -of the trial in the case accepted to be the correct procedure. It was opento the prisoner when he appealed to this Court to have made it a groundon. which t-o challenge his conviction. He chose not to do so. Can he now '
1 (1917) i K. B. 176.
576 '‘ ' SINNETAMBY, J.—Thamboo v. Superintendent'of Prisons
by suing out a writ of Habeas Corpus seek to obtain a decision on.thatpoint ? This is precisely what the English cases condemn' as being tanta-mount to attempt to obtain a'review of the jcase havirig'failed in thefirst appeal or not having appealed at all. .■
Supposing the prisoner did take this point in his appeal and the‘ Court, as it probably would have*done having regard to the views thenheld,' rejected it. Would it be open to him now to re-agitate the matterby way of Habeas Corpus ? The answer to that question would be adefinite and a categorical “ No Then the mere fact that he had nottaken the point which he could well have taken, in my opinion, shouldmake no difference. In my view therefore in the circumstances of thiscase the writ of Habeas Corpus is not available to the accused. '
The other question that requires consideration is whether it is open tothe Court to allow a wrrit of habeas corpus as against an order of committalwhich is based on the judgment of this Court. The English law is quiteclear. No writ will be allowed questioning the decision of a superiorCourt. In re Dunnh In the present case there was an appeal to this Courtfrom the finding of the magistrate. The case was reviewed by this Courtwhich while affirming the conviction reduced the sentence. The finaljudgment upon which the petitioner is incarcerated is in my view thejudgment of this Court and not a judgment of an inferior Court and awrit will not therefore lie.'.
The rule should accordingly be discharged and the applicationdismissed. I so order.
Application dismissed.
1 (1847) 17 L. R. C. P. 97
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