G. D. GUANSEKERA, Appellant, and KOSGAMA POLICE, Respondent

090-NLR-NLR-V-75-G.-D.-GUANSEKERA-Appellant-and-KOSGAMA-POLICE-Respondent.pdf


Ounasekera v. Kosgama Police
497
1972Present: Rajaratnam, J.G. D. GUNASEKERA, Appellant, and KOSGAMA POLICE, RespondentS. C. 394/70—M. C. AvissaweUa, 87796Conciliation Boards Act No. 10 oj 1958—Section 14 (I) (6)—Plaint entertained inMagistrate's Court without Chairman's certificate—Offences alleged punishableunder ss. 410 and 486 of Penal Code—Deject in Schedule to Conciliation BoardsAct—Objection relating to jurisdiction—Whether it can be raised Jor first timeat stage of appeal—Difference between latent and patent want of jurisdiction—Absence of Chairman's certificate—Whether it is an irregularity curable unders. 425 of Criminal Procedure Code—Proceedings instituted by Police on behalfof State—Whether Chairman's certificate is necessary then—InterpretationOrdinance, s. 3—Criminal Procedure Code, ss. 290, 425.
The accused-appellant was convicted by a Magistrate’s Court of the offencesof mischief and intimidation (punishable under soctions 410 and 486 of thePenal Code respectively) for causing damage to a C.T.B. bus and threatening tostab the driver of the said bus. The proceedings were instituted by the Policeon behalf of the State.
Objection was taken for the first time in appeal that the Magistrate had nojurisdiction to entertain the plaint in the absence of a certificate issued inaccordance with the provisions of section 14 (1) (6) of the Conciliation BoardsAct. Admittedly a Conciliation Board had sheady been appointed for thearea where the alleged offences were committed.
Held, (i) that the Schedule to the Conciliation Boards Act, although it takesin wholesale the Schedule of compoundable offences specified by section 290of the Criminal Procedure Code, has omitted to make a distinction betweenthe lessor type of intimidation and the more serious type of intimidationpunishable under the Penal Code with inprisonment for seven years. Nordoes it make a distinction between mischief in relation to private propertyand mischief in relation to public property. These two omissions jn the Sohcd uleto the Conciliation Boards Act require the immediate attention of theLegislature.
that, inasmuch as no objection relating to jurisdiction was taken in theoriginal Court upon proof that a Panel of Conciliators had been constitutedfor the area in which the alleged offences were committod and that this Panelwas appointed on a date prior to the alleged offences, the absence of a certificatefrom the Conciliation Board when the plaint was instituted could not invalidatethe proceedings of the trial Court. In such a case, when want of jurisdictionis latent and depends upon proof of facts and is not patent on tho face of theplaint, the objection to jurisdiction cannot be raised for the first time at theStage of appeal, nor even at a late stage of the trial.
' Peiris v. Inspector.of Police {Crimes), Kalulara (74 N. L. R. 479) riot followed.
that, even assuming that the failure to produce the Chairman's certificatebefore the case was instituted constituted an irregularity, it was only aprocedural irregularity that was curable under section 425 of the CriminalProcedure Code if there was no miscarriage of justice and no objection wastaken at the trial.
Obiter: In view of the provisions of section 3 of the InterpretationOrdinance, a police officer, when he is the complainant in a case on behalf ofthe State, is presumably not bound by tho requirements of section 14 (1) (6) ofthe Conciliation Boards Act.
498
RAJARATNAM, J.—Qunaaekera v. Koagama Police
_^kPPEAL from a judgment of the Magistrate’s Court, Avissawella.
S. B. Lekamge, for the accused-appellant.
S. Aziz, State Counsel, for the Attorney-General.
Cur. adv. vult.
November 3, 1972. Rajabatnam, J.—
The accused-appellant was charged in the Magistrate’s Court ofAvissawella with the offences of mischief and intimidation punishableunder s. 410 and s. 486 of the Penal Code respectively. It was allegedthat he caused damage to a C.T.B. bus and he threatened to stab thedriver of the said bus.
After trial he was convicted on both counts and sentenced to 6 months’rigorous imprisonmnt on each count (concurrent).
I see no reason to interfere with the finding of the learned Magistrateon the facts of the case.
The main point urged by learned Counsel for the appellant was thatthe alleged offences were committed within an area where there was aConciliation Board constituted and as such the Magistrate’s Court ofAvissawella had no jurisdiction to entertain the said complaint norcould any action have been instituted in the said Court in view of s. 14 (1)
of the Conciliation Boards Act No. 10 of 1958.
The objection to jurisdiction was not taken in the lower Court andlearned Counsel for the State concedes that there was a ConciliationBoard appointed covering the area where the alleged offences werecommitted at the relevant period.
The question before me is whether the whole proceedings in theMagistrate’s Court are null and void-
The Conciliation Boards Act was enacted to save the public fromcoming to Court by giving them a chance to settle their differences incases where the offences alleged can be compounded. It provided foran attempt (to be made compulsory) to compound certain offences of aless serious nature before the Conciliation Board. The Schedule to theConciliation Boards Act specified what offences could be taken forConciliation and one finds that the Schedule of compoundable offencesunder 8. 290 of the Criminal Procedure Code has been taken wholesaleinto the Schedule to the Conciliation Boards Act.
But it is a matter of regret that it has not struck the draughtsman totake into the Schedule of the Conciliation Boards Act only the lessertype of intimidation. Instead all types of intimidation of a seriousand trivial nature have found a place in the Schedule to the Act.Moreover the Act has taken into its Schedule all types of mischief whetherto public or private property.
RAJARATNAM, J.—Gunasckera v. Kosgama Police
489
This is a matter which must be immediately remedied by theLegislature. Otherwise as the law stands, a person threatened withdeath by another at the point of a gun where the offence is punishableunder the Code with imprisonment of 7 years has first to go before theBoard, and is forced by law to attempt a settlement with the offender.This is not a situation ever intended by the Legislature.
Similarly with regard to the offence of mischief the Schedule to theCriminal Procedure Code makes a distinction between the offence ofmischief in relation to private property which is compoundable and publioproperty which is not compoundable. The Schedule to the Act doesnot make such a distinction thus presenting a problem.
I refer to these situations as learned Counsel for the State invited meto interpret and modify the Schedule to the Act with reference to theSchedule to the Code in respect of these two offences, as in the presentcase, he says, the offence of intimidation was of a serious nature witha threat to stab with a knife which was pulled out and the offenceof mischief was to public property both offences not being compoundableunder the Schedule to the Code. After reading the Schedule to theAct along with the Schedule to the Code he submitted, I could holdthat these were two offences which were not required by law to engagethe attention of the Board and therefore a certificate was not necessary.
I am afraid that much as I would desire to do so, I must be slow tostrain my imagination to modify the Schedule where the draughtsmaneither failed to or did not modify. It is more in the interests of justice toreveal the problems that arise from an Act as drafted than to make anattempt to judicially repair and adjust the Act to meet a problematicsituation. Therefore the question before me how is—are the proceedingsof the Court null and void because the plaint was instituted without thecertificate from the Board ?
In the case of Wickremaratchi v. Inspector of Police, Nittambuwa1,71 N. L. R. 121, Alles J. was of the view that the proposition that offencesunder s. 6 must in the first instance be referred to a Conciliation Boardand a certificate obtained from the Chairman, before proceedings can beinstituted or entertained in an established Court of Law, is not warrantedunder the provision of the law. He held further “ that, even assumingthat the failure to produce the Chairman’s certificate before the casewas instituted constituted an irregularity, it was only a proceduraldefect that was curable under s. 425 of the Criminal Procedure Code”.
In the case of Nonahamy v. Ualgrat Silva2, (1971) 73 N. L. R. 217, aBench of three Judges with Alles J. dissenting held that the DistrictCourt had no jurisdiction to grant an injunction under ss. 86 and 87 of theCourts Ordinance in the absence of a certificate issued by the Chairman
1 (1968) 71 N.L.R. 121.> (1971) 73 N. L. R. 217.
600
RaJARAXNAM, J.— Qunasekcra v. Kosgama Police
of the Conciliation Board in terms of s. 14 of the Conciliation BoardsAct, and his Lordship the Chief Justice was of the view that the case ofWideremaratchi v. Inspector of Police, Nittambutoa, was wrongly decidedin so far as it held that a. 14 of the Conciliation Boards Act does notapply in a case where parties do not desire to refer a dispute to &Conciliation Board, and the correctness of the further finding by Alles J.in this case that the defect in the prosecution due to the absence of thecertificate was curable under 8. 425 of the Criminal Procedure Codewas left in doubt. Thus the question has been left open by My Lordthe Chief Justice. In the case referred to above in 73 N. L. R. 217, theobjection to this jurisdiction was taken in the original Court and upheldby the District Judge. It was this order of the District Judge that wasreviewed in appeal.
In the case of Samarasinghe v. Samarasinghe1 (1967) 70 N. L. R. 276,the objection on this point again was taken in the original Court andover-ruled. The appellate Court held that the ruling of the DistrictJudge was erroneous.
In the case of Fernando v. Fernando2 (1971) 74 N. L. R. 57,
. Samerawickrame J. (with Pandita-Gunawardene J. agreeing) theobjection to jurisdiction was taken at a late stage after the plaintiff’scase was closed and after the defendant and two witnesses had given .evidence. It was held that the defendant was precluded by delay andacquiescence from raising an objection to jurisdiction. Objectionrelating to jurisdiction may be waived if the want of jurisdiction is notapparent and depends on the proof of facts—for example, where oneparty does not know that there is a Conciliation Board constituted inthe area, but after a few trial dates or after a trial has started comes toknow about the existence of a Conciliation Board and thereafter objectsto the jurisdiction. I am fortified by the above decision in Fernando v.Fernando to hold that this objection cannot succeed. To allow it tosucceed will defeat the whole purpose and intention of the Act to expeditelitigation and make it less expensive. In the case of Fernando v. Rosalin a(1971) 74 N. L. R. 563, it was held that even assuming that a certificatefrom the Conciliation Board is necessary in a partition action, it wouldbe too late to raise an objection as to the absence of such certificate ifinterlocutory decree has already been entered.
I have been referred to the case of Peer is v. Inspector of Police (Crimes),KaliUara *, 74 N. L. R. 479, where Wijayatilake J. held that an objectionto jurisdiction on this point can be taken even at the stage of the appeal.With great respect, I am not able to agree. Wijayatilake J. had quotedthe observations of Samerawickrame J., “ where the want of jurisdictionis patent, objection to jurisdiction may be taken at any time. In sucha case it is in fact the duty of Court itself ex mero motu to raise the pointeven if the parties fail to do so ”, and held that from the perusal of the
. 1 (1967) 70 N. L. R. 276.* (1971) 74 N. L. R. 663.
» (1971) 74 N. L. R. 57.* (1971) 74 N. L. B. 479.
RAJAJRATNAM, J.-—Gwn'asekera v. Kosgama Police
601
plaint s. 314 and s. 410 of the Penal Code under which the accused wascharged should have made it patently clear that these offences are clearlyset out in the Schedule to the Conciliation Boards Act and thereforeoutside the jurisdiction of the Magistrate’s Court. With great respectthe fact that ss. 314 and 410 are included in the Schedule to the Actdoes not make it patently clear whether there is a Conciliation Boardexercising jurisdiction in the area. Thi3 depends upon the proof offacts.
In the case of Fernando v. Fernando referred to above, SamerawickrameJ. went on to observe “the position, however appears to be differentwhere the want of jurisdiction is not apparent on the face of the recordbut depends on the proof of facts. In such a case, it is for the partywho asserts that the Court has no jurisdiction to raise the matter and toprove the necessary facts ”. In the same judgment Samerawickrame J.exhaustively dealt with this question of patent and latent want ofjurisdiction and enumerated what facts had to be proved to throw a caseout of the jurisdiction of a competent Court.
In the present case there had to be proof of the following facts atleast inter alia :—
That the alleged offences were committed at Salawa within a
certain area,
That a Panel of Conciliators have been constituted for this area,
and
That this Panel was appointed on a date prior to the alleged
offence,
so that this was a. case of a latent want of jurisdiction withoutthe.proof of the above three facts. Moreover, how can a Court withoutthe proof of the above facts mero motu rule that it lacks jurisdictionwhen its want of jurisdiction is latent and not patent on the face of theplaint ?
On a consideration of the decisions in the above cases apart from thedecision in Peeris v. Inspector of Police (Crimes), Kalutara, I hold that itis too late to raise this objection in appeal or for a matter of fact even ifit is raised at a later stage of the trial.
The other question which merits consideration is whether s. 425 of theCriminal Procedure Code can be applied in such a situation. My brotherAlles has held it can be and My Lord the Chief Justice has allowed itopen to consider the correctness of this view. With great respect Ihave no reason to disagree with Alles J. In my view the Magistrate’sCourt remains a Court of competent jurisdiction even after theConciliation Boards Act. The production of the certificate is an essentialobligatory procedural requirement. To rule that it is not essential or
502
RAJARATNAM, J.—Ounaaekera v. Koagama Police
obligatory will be clearly wrong and illegal. But if this requirementhas been overlooked, it will nevertheless and never the more, if I maysay so, remain a procedural irregularity.
Section 147(1) of the Criminal Procedure Code prohibits the Courtfrom taking cognizance of certain offences without the previous sanctionof the Attorney-General and s. 425 specifically cures an irregularity whichis due to the want of such sanctions as required by s. 147, on the basisthat judgment has been passed by a Court of competent jurisdiction. Inthe words of T. S. Fernando J. in the case of Samarasinghe v. Samarasinghe170 N. L. R. at p. 278, “ we do not think that the Conciliation Boards Actmakes any pretensions of depriving the citizen of his right of access tothe established Courts. What it seeks to do is to place a bar against theentertainment by Court in certain stated circumstances of civil or criminalactions unless there is evidence of an attempt first made to reach asettlement of the dispute over which the parties appear set on embarkingon litigation which is often expensive to the parties as well as to theState and which almost always finishes up in bitterness ”.
It was held in Attapattu v. Punchi Banda2,40 N. L. R. 169, by a DivisionalCourt where a plaint was not sanctioned by the Attorney-Generalnor instituted in compliance with s. 147 (1) and an objection was takenat the close of the prosecution case and overruled by the Magistrate,that the Supreme Court had power in such a case to act under s. 425of the Criminal Procedure Code where it is satisfied that the irregularityhas not occasioned a failure of justice.
In the present case I do not see any miscarriage of justice. On thiBpoint I have also considered—
the case of Thomas v. Bawa 8,46 N. L. R. 215, where it was held that
a defect arising from the non-compliance with the procedureprescribed as essential for the exercise of jurisdiction can bewaived by consent of parties.
Price v. Humphries 4, (1958) 3 W. L. R. 304, where it was held that
proof of consent of the Minister which was an essentialrequirement for the institution of an action under theNational Insurance Act was a matter of procedure.
In the light of these authorities, I am with great respect further fortifiednot only not to disagree but to agree with Alles J. that s. 425 can beapplied by this Court in the circumstances of this case.
I will be failing in my duty not to consider another point that waselicited in the course of the argument and that was 8. 3 of theInterpretation Ordinance which reads “ no enactment shall in any
(1945) 46 N. L. B. 216.
(1958) 3 W. L. B. 304.
(1967) 10 N. L. B. at p. 278.
(1938) 40 N. L. B. 169.
RAJARATNAM, J.—Ounaatkera v. Kosgama Police
503
manner affect the right of the Crown unless it is therein expressly statedor unless it appears by necessary implication that the Crown is boundthereby. ”
Every crime is ah offence against the State and where the Police onbehalf of the State considers the offence though within the Scheduleto the Conciliation Boards Act . serious enough to prosecute, should thematter first or each time go before the Conciliation Board for the futilepurpose of going through an unreal motion for a never intended attemptat a settlement ? For instance where an offender habitually abusesor voluntarily causes hurt or mischief to a neighbour or a neighbour’sproperty, is a certificate necessary each time for instance the offenderdamages the window pane of his neighbour ? Is a certificate necessarywhere a high officer of State while passing through an area within theoperation of a Conciliation Board is criminally intimidated or evenassaulted ? Is it the Police or the unfortunate officer of State so threatenedor assaulted who has to come to the Conciliation Board constituted inthe area' to go through the unreal motion for a never intended attemptat a reconciliation ? Does the Conciliation Boards Act include suchcases or is the State where it chooses to prosecute free to go straight intoCourt.. I am inclined to consider that the rights of State cannot beaffected by the Conciliation Boards Act. If it does it is a matter for thelegislature to appropriately amend the provisions of the said Act.
i
A •
In the case of Saravanamuttuv. de Mel1, 49 N.L. R. 529 at p. 566,Dias J. referred to the Privy Council case of The Province of Bombayv. The Municipal Corporation of Bombaya, 1947 A. C. 58, which laid downthe principle we find in s. 3 of our Interpretation Ordinance. “ TheirLordships ”, he said, “ pointed^, out-.i^hat the argument that when,astatute is enacted for the public good, the Crown though not expresslynamed, must be held to be bound by its provisions cannot now be regardedas . sound except in a strictly limited sense. If it can be affirmed thatat the time the statute was passed and received the Royal sanction,it was apparent from its terms that its beneficent purpose must be whollyfrustrated unless the Crown was bound, then it may be inferred that theCrown has agreed to be bound ”. Therefore if it is the case that theCrown has agreed to be bound by this Act lest its beneficent purpose bewholly frustrated, then it is a matter for the State now to take up thisposition and not for this Court to decide and unless a definite position istaken by learned Counsel for the State that it is not. so bound, I cannotexpress any further views on this matter.
I dirnnina the appeal and refuse the application.
» (1948) 49 N. L. B. 629 at 666.
Appeal dismissed.• (1947) A. O. 68.