034-NLR-NLR-V-71-K.-A.-JAYAWARDHENA-Appellant-and-R.-THIRUCHELVAM-Respondent.pdf
134
Jayawardhena v. Thiruchclvam
1968Present: Samerawickrame, J.
K.A. JAYAWARDHENA, Appellant, andR. THIRUCHELVAM, Respondent
S. C. 1130167—M. C. Colombo South, 77729JA
Criminal Procedure Code—Sections 338 (2) and 339—Time limit for appeal—Com-putation—Sundays cannot be excluded—“ Dies non"—Holidays Act, No. 17 of1965, s. 2 (a)—Applicability of maxim cessante rations legis ceesat ipse lex.
As Sunday is no more a dies non by virtue of section 2 (a) of the HolidaysAct, No. 17 of 1965, tho provision of section 339 of the Criminal Procedure Codefor the exclusion of Sundays in computing tho time within which an appeamust be filed has ceased to be law.
.ApPEAL from a judgment of the Magistrate’s Court, Colombo South.
V. S. A. Pullenayegum, Senior Crown Counsel, with L. D. Guruswamy,for the complainant-appellant.
M. Soma8underam, with S. Ponnambalam and V. Shanmuganathav, forthe accused-respondent.
Cur. adv. vuU.
8AMERAWICKRAME, J.—Jaymcardhena v. ThirtuJtdvam135
September 8, 1968. Samebawickbahe, J.—
This is an appeal with the sanction of the Attorney-General against anorder of acquittal of the accused-respondent on a charge under the Controlof Prices Act. The order of the learned Magistrate was made on the13th September, 1967, and the appeal has been filed on the 17th October,1967. The first question that arises is whether the appeal has been filedin time. Section 338 (2) provides that where the Attorney-Generalsanctions an appeal, the time within which tho petition of appeal mustbe preierred shall be 28 days. Section 339 of the Criminal ProcedureCode provides that in computing the time within which the appeal mustbe preferred, Sundays and public holidays should be excluded. Whetherthis appeal is in time or not depends on whether the provision in Section339 for the exclusion of Sundays has or has not been abrogated by reasonof the enactment of Section 2 (a) of the Holidays Act, No. 17 of 1965.That Section is as follows :—“ It is hereby declared that any custom orusage or written law whereby every Sunday—(a) has beon a dies non in .Ceylon shall eeaso to have the force and effect of law in Ceylon, andaccordingly that no Sunday shall, by reason only of such custom orusage or law which had or purported to have Ixad such force andeffect, bo or continue to bo such a dies non
What a dies non is has been considered by a number of decisionsof our Court. In Appa Cutty v. Ayeska Vmma1 it was held that acharge of resisting an arrest of the person in execution made upon theHadji festival day could not be maintained because that day was notavailable for the service or execution of civil process. In Georgina v.Ensohamy8 Wendt, J. said, “ I suppose dies non is an elliptical formof the expression dies non juridicus, ‘not a court day’.” He heldthat the sale in execution held by the Fiscal on such a day was bad. Inthe case of Goonawardena v. Padnck Singho 3 it was held that theordinary inference from the fact that a day is a dies non is thatproceedings of Court ought not to be taken on that day but it does notmakeHhese proceedings void. That was on action to set aside an awardmade in arbitration proceedings on the ground that proceedings had beenheld without objection on a Sunday. In the case of KulantaivelpiUai v.Marikar 4 Bertram, C.J. referred to the dictum of Wendt, J., thata dies non was merely a concise way of saying dies non juridicus.He said later: “The effect, therefore, in my opinion, of the declaration ofa day as a public holiday and a dies non by Ordinance No. 4 of 1886 istwofold. In the first place, it excuses judicial officers and their subordinateministerial officers.from the necessity of attending Court, or of performingany judicial or ministerial acts, on that day ; in the second place, it protectaany member of the public from being forced to attend Court, or to attendany judicial proceeding held elsewhere than in Court, on that day. Itdoes not, in my opinion, affect any judicial act or proceeding which maybe validly done or taken in the absence of a party, and which consequently,
1 (1890) 9 S. C.G.fil.1 {1903)7 N. L. R. 129.
(1918) 5 C. W. R. 310.
(1918) 20 N. L. R. 471.
136
SAMERAWICKRAME, J.—Jayawardhena v. Thiruchelvam
does not involve his personal attendance. Further, it does not preclude ajudicial officer, or any of his ministerial subordinates, from waiving hisprivileges if he so decides, and from doing any act or taking part in anyjudicial proceeding on a day declared to be a holiday. There is nothingeither in the Ordinance or in the principles laid down by Voet whichdeclares null and void any judicial act which a judicial officer voluntarilyelects to do and which does not involve the compulsory attendancebefore him of any party affected.”
Mr. Pullenayegum submitted that Section 339 of the Criminal ProcedureCode does not provide that proceedings in Court should not be held onSunday or that it is to be a dies non. It merely provides that in computingtime within which an appeal may be preferred, Sundays should be excluded.The most that could be said was that it had excluded Sundays because ithad recognised that Sunday was a dies non by virtue of some other provi-sion of law. He pointed out that at a time when Sunday was a dies nonby reason of the Holidays Ordinance of 1886, Section 339 (1) of the Code,as it originally stood, provided that in computing the time within which anappeal must be preferred, the day on which the judgment or order containedof was pronounced and all Sundays and public holidays shall be included.That provision was amended by Section 5 of the Ordinance No. 6 of 1924by deleting the words “and all Sundays and public holidays” and byadding the words “ but -all Sundays and public holidays shall be excluded ”.Thus at one time, though Sunday was a dies non, it was a day to be countedin the computation of time in terms of this Section. Section 339 (1), aspresently worded, did no more than perhaps recognise the fact thatSunday was a dies non. It could not, therefore, be said that it is awritten law whereby Sunday had been a dies non in Ceylon within themeaning of Section 2 of the Holidays Act, No. 17 of 1965. That Act,therefore, did not have the effect of abrogating any provision of Section339 and causing it to cease to have force and effect of law in Ceylon.It might well have been the intention of the Legislature that the provisionof Section 339 of the Criminal Procedure Code should cease to have effectin so far as it provides that Sunday should be excluded in the computationof time and it might have been thought that Section 2(a) of the HolidaysAct would bring about that result. The terms of the provisions of Section2 (a), however, were clear, and they did not have the effect of abrogatingany part of the provisions of Section 339. He submitted that if theprovisions of Section 2 (a) of the Holidays Act had failed to give effectto the intention of the Legislature, it was not a matter which could beremedied by the Courts but one which required an amendment duly madeaccording to law.
Mr. Pullenayegum’s arguments are not without force and I was attractedby them, but after careful consideration, I have arrived at a different view.The reason why Section 339 of the Criminal Procedure Code providedthat Sundays should not be counted in computing the time within whichan appeal might be filed is that Sunday beings dies non, the Magistrate’s
SAMERAWICKRAME, J.—-Jayawardhena v. Thirttchelvam
137
Court or District Court, with which the petition of appeal had to be lodged*would not ordinarily be open to receive it. The legislature apparentlyconsidered that all the days to be counted in computing the timewithin which an appeal may be filed should be days on which the lodging ofa petition of appeal in Court should be available to the appellant. It istrue that the Section, as it originally stood, provided Sundays and publicholidays should be included in computing the time, but the very factthat there was express provision to that effect shows that ordinarily onlydays on which a petition of appeal could be filed should be counted..After the section was amended in 1924, there can be no doubt that therational basis for the exclusion of Sundays was that Sunday being adies non, the lodging of a petition of appeal with a Court on it was notavailable to an appellant. By reason of the enactment of Section 2 (a)of the Holidays Act, No. 17 of 1965, Sunday has ceased to be a dies nonand a petition of appeal may be lodged with a Court on that day. Therational basis for the provision for excluding Sunday when computingthe time within which an appeal-may be filed has thus.been removed .Should the provision continue in force ? In my view, it should not.This is a matter in which the maxim, cessante ratione legis cessai ipsalex applies. The maxim has also been stated in the following way:—“Reason is the soul of law and when the reason for any particularlaw ceases, so does the law itself. ” (See Broom’s Legal Maxims, 10th ed..p. 110).
1 think there is such inconsistency, if no i repugnancy, between a laterstatute which provides that no Sunday should be a dies non and anearlier' statute which excludes Sundays in the computation of time on thebasis that all Sundays are dies non, that the effect of the later statute isimpliedly to repeal, abrogate or make the earlier statute cease to be offorce or effect to the extent that it provides for the exclusion ofSundays.
I am, therefore, of the view that with the enactment of Section 2 (a) ofAct No. 17 of 1965, the provision in Section 339 for the exclusion ofSundays in computing time ceased to be law. I am fortified in the viewI have taken by the judgment of Tambiah, J. in Chalo Nona v.Weerasinghe1 in which he held that as Sunday is no more a dies non,Sundays could not be excluded in determining the time withinwhich an appeal may be filed in terms of Section 754 (2) of the CivilProcedure Code.
therefore, hold that this appeal has not been filed in time and 1make order rejecting it.
Appeal rejected.
* {067) 70 N. L. JR. 46.