028-SLLR-SLLR-2006-V-3-MEDIA-IMAGE-LTD-vs.-DISSANAYAKE.pdf
CA
Media Image Ltd Vs.
Dissanayake
215
MEDIA IMAGE LTDVS.DISSANAYAKECOURT OF APPEAL.
WIMALACHANDRA. J.,
CALA 35/2004 (LG).
DC COLOMBO 6508/SPL.
JULY 28,2006.
Civil Procedure Code, Sections 793,797 (1), 792 (2), 798 – Offence of Contempt• Court to be satisfied that an offence of contempt committed?- Should theCourt form an opinion that sufficient grounds exist before issue of summons?-Order- /s it final?
The plaintiff- respondent obtained an enjoining order against the Sri LankaRupavahini Corporation from transferring the teledrama air time on Thursdaysat 8.30 to a 3rd party during the year 2002, and preventing the SLRC fromtelecasting the teledrama “Maine Naiyo” produced by the plaintiff at 8.30 p.m.on Thursdays in 2002. Despite the enjoining order, the defendants- petitionerstransferred the teledrama air time to a third party and refused to telecast theteledrama produced by the plaintiff-respondent.
The plaintiff – respondent moved Court to charge the defendant -petitioner(SLRC) for contempt of Court and the Court issued summons under Section793 of the Code. The defendants- petitioners raised a preliminary objectionand stated that, the charge sheet did not comply with Section 793 and did notdisclose the date and the alleged act of contempt. The trial Court rejected theobjections, and observed that, whether there is an offence of contempt will bedecided after the evidence is led and the burden of proof of establishing acharge of contempt is on the plaintiff and if the plaintiff fails to prove the chargethe Court can act according to law at that time.
The defendant – petitioner sought leave to appeal from the said order andleave was granted.
It was contended by the defendant- petitioner that, before issuing summonsin terms of Section 793, it is necessary for the Court to be satisfied that anoffence of contempt appears to have been committed and the Court shouldform an opinion as to whether sufficient grounds exist to charge a person forcontempt before the issue of summons.
It was also contended that the order of the District Judge was a final order.
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(2006) 3 Sri L R.
HELD:
The impugned order is an order rejecting the preliminaryobjection. The impugned order rejecting the preliminary objection
' is not a final order but an interlocutory order.
Held further:
Contempt proceedings even to punish for Court contempt are inthe nature of criminal proceedings, even if contempt is not acrime it bears a criminal character.
In contempt proceedings, as in any other criminal case institutedin a Magistrate's Court, before issuing summons the Court hasto be satisfied that the petitioner has disclosed sufficient groundsto proceed against the respondents.
The trial judge should form an opinion as to whether there weresufficient grounds for him to issue summons under section 793
Per Wimalachandra. J.
“ I am of the view that the trial judge erred when he held that whether thepetition and affidavit disclose a contempt charge will be decided after theinquiry. The learned judge by making that aforesaid order deviated from the
legal position laid downhe had not made an objective assessment
of the available material before deciding to issue summons".
APPLICATION for leave to appeal from an order of the District Court ofColombo with leave being granted.
Cases referred to:-
Jayaratne vs Sirimavo Bandaranayake – 69NLR 184
Dayaratne and Peiris vs Dr. S. D. M. Fernando and others -1988 – 2 SriLR 314 at 323
Bartleet Commodity Exchange Ltd vs. N. Susilani – CA 57/90 – CAM21.06.1994
Malini Gunaratne, Additional District Judge of Galle vs. Abeysinghe -1994-3 Sri LR 196 at 199
Shah vs. Hatton National Bank – 2001-2Sri LR 59
Thurasingham vs Karthekisu – 50NLR 570 at 574
Palitha Kumarasinghe with Priyantha Alagiyawanna for respondent – petitionerNizam Kariapper with M. I. M. lynulla for plaintiff – respondent.
Cur. adv. vult.
CA
Media Image Ltd Vs.
Dissanayake (Wimalachandra, J.)
217
November 11,2006WIMALACHANDRA, J.
This is an application for leave to appeal from the order of the learnedAdditional District Judge of Colombo dated 19.01.2004. Leave to appealhas been granted on the following questions:
Before issuing summons in terms of section 793 of the CivilProcedure Code in respect of contempt of Court, is it necessaryfor the Court to be satisfied that an offence of contempt appearsto have been committed?
Does it require the Court to form an opinion as to whether sufficientgrounds exist to charge a person for contempt of Court, beforethe issue of summons to the accused persons, in terms of Section793 of the Civil Procedure Code?
Is the impugned order made by the learned District Judge dated
an interlocutory order overruling an objection and cana final appeal lie against such an order?
Briefly, the facts as stated in the petition are as follows :
The plaintiff-petitioner-respondent (plaintiff) instituted the above styledaction in the District Court of Colombo inter alia for a declaration that theplaintiff is entitled to the teledrama air time on Thursdays at 8.30 p.m. ofthe defendant- petitioner’s (defendant’s) Corporation under and in terms ofthe contract entered into between the plaintiff and the defendants.
The plaintiff also prayed for an interim injunction preventing the Sri LankaRupavahini Corporation from transferring teledrama air time on Thursdaysat 8.30 p.m. to a 3rd party during the year 2002. The plaintiff also soughtan enjoining order until the interim injunction was granted.
The plaintiff obtained an enjoining order aganst the Sri Lanka RupavahiniCorporation from tranferring the teledrama air time on Thursdays at 8.30p.m. to a 3rd party during the year 2002 and also preventing the Sri LankaRupavahini Corporation from telecasting the teledrama called “Maine Naiyo”produced by the repondent, at 8.30 p.m. on Thursdays in the year 2002.
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(2006) 3 Sri L. R.
Despite the said enjoining order the defendants transferred the saidteledrama air time to a third party and refused to telecast the teledramaproduced by the Plaintiff. Thereafter the plaintiff made an application toCourt to charge the defendants for contempt of Court and the Court issuedsummons under and in terms of section 793 of the Civil Procedure Code.The plaintiff moved Court to amend the charge sheet. The Court alsoallowed an application made by the defendants to file objections againstthe amendment sought by the plaintiff.
The defendants filed their statements of objections, stating that thesaid charge sheet did not comply with the provisions of section 793 of theCivil Procedure Code in as much as the said charge sheet did not disclosethe date and the alleged act of contempt of Court. When the matter wastaken up for inquiry, the parties agreed to tender written submissions. Thelearned District judge delivered the order on 19.01.2004 rejecting thepreliminary objections raised by the defendants on the following grounds:
Whether there is an offence of contempt will be decided after theevidence is led.
The burden of proof of establishing a charge of contempt of Courtwould be on the plaintiff and if the plaintiff fails to prove the charge,the Court can act according to law at that stage.
It appears that the teamed judge was of the view that it is only after theconclusion of the inquiry, if the charge is not proved, the accused could bedischarged.
The learned counsel for the respondents submitted that before issuingsummons under and in terms of section 793 of the Civil Procedure Code inrespect of contempt of Court, it is necessary for the Court to be satisfiedthat an offence of contempt appears to have been committed. In support ofhis contention the learned counsel cited the case of Jayaratne Vs. SirimavoBandaranaiken)wherein H. N. G. Fernando S. P. J. (as he was then) whodelivered the judgment held that a rule nisi for contempt of Court will notbe issued unless there is available evidence which can lead the Court toconclude that an offence of contempt appears to have been committed.
It seems to me that before taking steps to issue summons the Courtmust be satisfied that there is a prima facie case to frame contemptcharges against the respondents on the material facts placed before Court.
CA
Media Image Ltd Vs.
Dissanayake (Wimalachandra, J.
219
When a party institutes contempt proceedings it resembles institutingcriminal proceedings in a Magistrate’s Court by filing a private plaint. Whena private plaint is filed the Magistrate is required to consider and form anopinion that there are sufficient grounds to proceed against the accused.
In the case of Dayawathie and Peiris vs. Dr. S. D. M. Fernando andother ) at 338, Justice Jameel held that contempt proceedings even topunish for civil contempt are in the nature of criminal proceedings. Even ifa contempt is not a crime it bears a criminal character.
In an unreported case of Bartleet Commodity Exchange Limited Vs. N.Sus/'/anr’justice Sarath N. Silva (as he was then) observed :
"A prosecution in a criminal case necessarily entails adverseconsequences to an accused person quite irrespective of itsultimate outcome. A Plaint filed by the Police is preceded byan investigation, a report of which is filed in Court. Sufficientground for proceeding against the accused should be disclosedin the report thus filed by the Police. Where a private plaint isfiled there is no such report or investigation. Hence it isimperative that the Magistrate should consider the Affidavitsand other document filed by the Complainant to decide whetherthere is sufficient ground to proceed against the accused.”
A similar opinion has been expressed in the case of Malini Gunaratne,Additional District Judge ofGalle Vs. Abeysinghe at 199.<4)
Considering the aforesaid judgments, it appears that, in contemptproceedings too, as in any other criminal case instituted in a MagistrateCourt, before issuing summons the Court has to be satisfied that thepetitioner has disclosed sufficient grounds to proceed against therespondents.
In the case of Malini Gunarathne, Additional District Judge ofGalle Vs.Abeysinghe and another 196, (Supra) one of the grounds urged by theaccused petitioner was that in terms of section 139(1) of the Code ofCriminal Procedure Act No.15 of 1979 the Magistrate may issue warrantor summons as the case may be, only where he is of the opinion thatthere is sufficient ground for proceeding against a person who is not incustody and the Magistrate has not given his mind to this requirementbefore directing the issue of summons.
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(2006) 3 Sri L R.
Justice S. N. Silva, P/CA (as he was then) observed (at 199).
“As regards the first ground urged by the learned President'sCounsel it is seen that section 139(1) of the Code of CriminalProcedure Act empowers a Magistrate to proceed against aperson not in custody against whom proceedings are institutedby way of a “Private Plaint* only where he is of opinion thatthere is sufficient ground for such action. The opinion hasto be formed on verifiable material that is adduced before theMagistrate and which should be assessed objectively. It isobvious that the learned Magistrate required the complainantto give evidence in view of the need to form his opinion on thematter….”
Section 139(1) requires a Magistrate to form an opinion asto whether there is sufficient ground for proceeding againstsome person who is not in custody. I am of the view that theopinion to be formed should relate to the offence the commissionof which is alleged in the complaint or plaint filed under section136(1). The words “sufficient ground” embrace both, theingredients of the offence and evidence as to its commission.
The use of the word opinion does not make the action of theMagistrate a purely subjective exercise. Since the opinionrelates to the existence of sufficient ground for proceedingagainst the person accused, the material acted upon by theMagistrate should withstand an objective assessment. I amof the view that the proper test is to ascertain whether onthe material before Court, prima facie, there is sufficientground on which it may be reasonably inferred that theoffence as alleged in the complaint or plaint has beencommitted by the person who is accused of it.”
I am of the view that the principle laid down in the aforesaid cases shallapply to contempt proceedings. Therefore the Court, before issuingsummons, must form an opinion as to whether sufficient grounds exist toissue summons under section 793 of the Civil Procedure Code. In order toform an opinion, the learned judge may examine the affidavit and otherdocumentary evidence placed before Court disclosing sufficient groundsupon which the contempt charge is framed. However in the case beforethis Court the respondent has not affirmed to in the affidavit nor has he
CA
Media Image Ud Vs.
Dissanayake (Wimalachandra, J.
221
It is seen that in making the order to issue summons he has not formedan opinion as to the existence of sufficient grounds to issue summons.
In the circumstances, I am of the view that the learned judge erredwhen he held that whether the petition and affidavit disclose a contemptcharge will be decided after the inquiry. The learned judge by making theaforesaid order deviated from the legal position laid down in the abovementioned cases.
I am unable to agree with the submissions made by the learned counselfor the respondent that at the time of issuing summons under section 793of the Civil Procedure Code the learned judge was in possession ofmaterial to issue summons as there was prima facie evidence that thepetitoners had violated the enjoining order. In my view, the learned judgemust form an opinion as to the existence of sufficient grounds. The learnedjudge must be satisfied that there are sufficient grounds to issue summons.In the instant case the learned judge had not formed an opinion that therewere sufficient grounds for proceeding in the matter. He had not made anobjective assessment of the available material before deciding to issuesummons.
placed any evidentiary material to form an opinion that there are sufficientgrounds to proceed against the petitioner.
In the circumstances, it is an imperative requirement for the learnedjudge, after considering the material placed before Court and the affidavitfiled, to be satisfied that there are sufficient grounds to issue summons tothe respondents. In the instant case the learned judge had not formed anopinion as to whether there were sufficient grounds for him to issuesummons under section 793 of the Civil Procedure Code against therespondent
The learned judge by his order dated 19.01.2004 held that whether thepetition and affidavit tendered by the plaintiff disclose an offence of contemptof court will be decided only after the inquiry. In his order (at page 3) hehas stated thus:
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(2006) 3 Sri L R.
Next I proceed to consider the third question upon which the leave toappeal was granted. The learned counsel for the respondent submittedthat the petitioners had followed a wrong procedure by filing an applicationfor leave to appeal from the impugned order in as much as the correctprocedure was to have a direct appeal against the impugned order.
Section 798 of the Civil Procedure Code provides that an appeal lies tothe Court of Appeal from every order, sentence or conviction made by aCourt in the exercise of its special jurisdiction to take cognizance of, andto punish the offence of contempt of Court. In the course of submissionsboth counsel cited the case of Shah Vs. Hatton National Bank The factsof this case are similar to the facts of the case before Court. In the saidcase, the District Court enjoined the Ceylon Bank Employees Union (C.B. E. U. O its members, servants, agent and all those holding under andthrough it from in any manner engaging in any strike.
The plaintiff-respondents had filed petition and affidavit and moved thatsummons be issued under section 793 of the Civil Procedure Code on thePetitioner, who is the General Secretary of the CBEU for disobeying theenjoining order.
The plaintiff – respondent contended that only a direct appeal lies againstthe said order. The Court held that,
a reading of section 797(1), 797(2) and section 797(3) impliesthat the word “order” in section 798 refers to an order of acquittal.
Words “every order" do not contemplate an order of the typecanvassed by the application for leave to appeal or an interimorder made in the course of an inquiry with the charge of contemptafter the accused has pleaded to the charge.
At 61, Edurisuriya, J. (P/CA) said ;
“The question which arises for answer first, is whether anorder such as the one which is appealed from, namely, anorder made overruling the preliminary objection prior to thePetitioner pleading to the charge of contempt is one which iscontemplated in Section 798”
CA
Media Image Ltd Vs.
Dissanayake (Wimaiachandra, J.
223
In interpreting the words “An appeal shall lie to the SupremeCourt from every order, sentence, or conviction made by anyCourt’ in section 798 Dias J with Gratien , J. agreeing inThuraisingham Vs. Karthikesu at t6,574 states :the true intentionunderlying section 798 is that while a right of appeal exists inevery case against an order, sentence or conviction in acontempt proceedings, the general rules of procedure containedin chapter XXX of the Criminal Procedure Code, so far as theyare applicable must be followed in order to bring the casebefore the Supreme Court.” So that clearly, the words “everyorder" do not contemplate an order of the type canvassedby the application for leave to appeal or an interim ordermade in the course of an inquiry with the charge ofcontempt after the accused has pleaded to the charge.”
“Thus, it is my view that there is a lacuna in the law withregard to the mode of appeal in respect of such interim orders,in the circumantances recourse must necessarily be had tothe provisions relating to interlocutory appeals laid down inSection 754(2)”.
In the present application before this Court the impugned order was anorder rejecting the preliminary objection. Applying the principle laid downin the case of Shah vs. Hatton National Bank Ltd.(supra), the impugnedorder rejecting the preliminary objection is not a “Final order” but aninterlocutory order which is an order canvassed by way of an applicationfor leave to appeal.
It was held in the case of Thuraisingham Vs. Karthikesu(6) that “order”referred to in section 798 of the Civil Procedure Code would include adischarge or acquittal.
In these circumstances, I am inclined to agree with the submissionsmade by the learned counsel for the petitioners that if a final appeal isavailable against every interlocutory order in contempt proceedings thecase will never conclude, because against every interim order such asadmitting evidence or rejecting evidence, or any order made in respect ofprocedural objection, if the aggrieved party made a final appeal to theCourt of Appeal, the original Court is bound to send the case record to the
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Court of Appeal for the determination of the final appeal.
In these circumstances, it is my considered view that the petitionershave correctly made this application for leave to appeal against the impugnedorder which was an interlocutory order.
In the circumstances the questions upon which the leave to appeal wasgranted are answered as follows:
Yes
Yes.
The impugned order was an interlocutory order and no final appealshall lie against such an order.
In consequence, I hold that the order of the learned Additional districtjudge dated 19.02.2004, directing to issue summons under and in termsof section 793 in form 132 be set aside. The appeal is allowed with costsfixed at Rs.5,250.
Appeal allowed.