131-NLR-NLR-V-49-SABAPATHY-Appellant-and-SINNIAH-et-al.-Respondents.pdf
Sabapathy v. Sinniah.
467
1948Present: Jayetlleke S.P.J. and Windham J.
SABAPATHY, Appellant, and SINNIAH et al., Respondents.S. C. 635—M. C. Chavakachcfieri, 26,206.
Criminal Procedure Code—Order for payment of compensation to accused—Doesappeal lie ?—Section 253 B, sub-sections 1 and 4.
An appeal lies from an order for the payment of compensation made underSection 263 B (1) of the Criminal Procedure Code.
Kandiah v. Rarnalinyam (1948) 49 -V. L. B. 304, overruled.
•J^HIS was a
question referred to a Bench of two Judges by
Wijeyewardene A.C.J. in the following terms :—
“ Acting under section 253b of the Criminal Procedure Code, theMagistrate ordered the complainant in this case to pay Rs. 5 as Crowncosts and Rs. 10 as compensation to each of the five accused. Thecomplainant filed an appeal against the order to pay compensationbut later filed a petition and an affidavit in view of a recent decisionof this Court (Kandiah v. Ramalingam, et al. *) and moved this Courtby way of revision.
“The learned Judge who decided Kandiah v. Ramalingam et al. (supra)says in the course of his judgment :—
‘ In my opinion when the legislature took away the right of appealagainst an order for the payment of Crown costs the right of appealagainst all other orders dependent thereon ceased. Any other viewwould have the effect of nullifying the Statute. If in every casein which an order for the payment of compensation is made anappeal were to lie it would amount to allowing a right of appealagainst the order for the payment of Crown costs. For, the orderfor the payment of compensation cannot be disturbed without atthe same time disturbing the order for the payment of Crown costsas they both rest on the same foundation, viz,., the acquittal ordischarge of the accused and the declaration that the complaintis frivolous or vexatious.’
“ That opinion is in conflict with the view expressed in a series ofearlier decisions.
“ I am unable to see why the setting aside of an order for the paymentof compensation must necessarily result in the cancellation of theorder for Crown costs. As pointed out earlier by the learned Judgehimself in his judgment, ‘ an order for the payment of Crown costscan exist without an order for the payment of compensation ’.
“ The parties affected by the order for the Crown costs are the Crownand complainant while the parties affected by the order for paymentof compensation are the accused and complainant. It is difficult to
1 (1948) 49 N. L. R. 304.
35 – N.L.R. Vol – xlix
458
WINDHAM J.—Sabapathy v. Sinniah.
understand why a provision which denied a right of appeal against theCrown regarding Crown costs should be taken to have affected theright of appeal given to a complainant by section 338 of the Codeagainst an accused regarding the order for compensation.
“ I think this is a question that should not be left in state of doubtand uncertainty. The considerations which move the court in theexercise of its revisionary powers differ from those which are takeninto account in the exercise of its appellate powers and it is thereforenecessary to ascertain whether the order in question is an appealableorder.
“ I reserve the question for a Bench of two Judges. It is desirablethat a Crown Counsel should assist the Court in this matter. I shallgive my decision on the order of the Magistrate after the decision onthis question reserved by me.”
N. Kumarasingham, with C. Renganathan, for the complainant,appellant.
No appearance for the accused, respondents.
R.A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 23, 1948. Windham J.—
The sole point reserved for decision in this case is a legal one, namely,whether subsection (4) of section 253b of the Criminal Procedure Codedeprives a complainant in a criminal case of the right of appealing againstan order for the payment of compensation by him to the accused, made bya magistrate under subsection (1) of the same section, where the complainthas been declared to be frivolous or vexatious. It is undisputed that,but for subsection (4), a complainant would have such a right by virtueof section 338 of the Criminal Procedure Code.
The provisions of subsections (1) and (4) of section 253b(subsections. (2) and (3) being irrelevant for the purpose) areas follows :—
“ 253b. (1) If in any case instituted on complaint under section 148 (1) (a)which a Magistrate’s Court has power to try, a Magistrateacquits or discharges the accused and declares that the complaint wasfrivolous or vexatious, it shall be lawful for such Magistrate to orderthe complainant to pay by way of Crown costs a sum not exceedingfive rupess, and he may, in addition, at the same time, order thecomplainant to pay to the accused, or to each of the accused when thereare more than one, such compensation not exceeding ten rupees toeach person as the Magistrate shall think fit, which sum if paid orrecovered shall be taken into account in any subsequent civil suitrelating to the same matter.
No appeal shall lie against any order for payment of Crowncosts.”
Now at first sight it would certainly appear that nothing in subsection (4)deprives a complainant of the right to appeal against an order forpayment of compensation, as distinct from Crown.costs,, and it was so
WINDHAM J.—Sabapathy v. Sinniah.
459
held in Bainapala Terunanse v. Marthelis Per era x, De Silva v. Gregoris 2and a number of other decisions, all of which were based on sections 197and 198 of the Criminal Procedure Code, 1898, which have been re-enactedwithout alteration as section 253b of the existing criminal ProcedureCode (Cap. 16).
In a recent decision, however, Kandiah v. Bamalingam3, thosejudgments have been dissented from, and it has been held that theeffect of subsection (4) of section 253b, read together with subsection (1),is to deprive a complainant of the right of appealing, not only against anorder for payment of Crown costs, but also against an order for paymentof compensation to the accused, on the ground that a deprivation ofthe former right must carry with it the latter, which is ancillary to it.The reasoning of the learned Judge, Basnayake J., in Kandiah v. Rama-lingam is contained in the following paragraph of his judgment, atpage 306 :—
“ An order for payment of Crown costs can exist without an orderfor the payment of compensation, but an order for the payment ofcompensation cannot exist without an order for the payment of Crowncosts. If then the Statute forbids an appeal against the order for thepayment of Crown costs which is a sine qua non for the order forpayment of compensation it cannot in my view be claimed that theorder for payment of compensation escapes the prohibition in subsection
. In my opinion when the legislature took away the right of appealagainst an order for the payment of Crown costs the right of appealagainst all orders dependent thereon ceased. Any other view wouldhave the effect of nullifying the Statute. If in every case in which anorder for the payment of compensation is made an appeal were to lieit would amount to allowing a light of appeal against the order forthe payment of Crown costs. For, the order for the payment ofcompensation cannot be distrubed without at the same time disturbingthe order for the payment of Crown costs as both rest on the samefoundation, viz., the acquittal or discharge of the accused and thedeclaration that the complaint is frivolous or vexatious. A constructionwhich renders the express provisions of a Statute nugatory and defeatsits very object is unacceptable and must be rejected in favour of thatwhich gives effect to the Statute ”.
Now with the greatest respect I am unable to agree with the reasoningin the passage quoted above. It would seem to resolve itself into thefollowing proposition : “ An order for compensation can be made onlyin a case where an order for Crown costs has first been made ”. (Thepremises so far are sound.) “ No appeal can lie from an order for Crowncosts ; therefore no appeal can lie from an order for compensation ”.But I confess I fail to see why it should not lie. The fallacy would seemto rest in the learned Judge’s having departed from his original premises,where the order for Crown costs was rightly treated, as merely a sine qua.non to the order for compensation, and basing his conclusion upon theAltered and (in my view) false premises that the order for compensation
1 (1502) 2 Weerakoon’s Reports 78.3 (1906) 1 A. G. R. 29.
3 (1948) 49 N. L. R. 304.
460
WINDHAM J.—Sabapathy v. SinnitiA.
is part of, or inseparable from, the order for Crown costs, the conclusionbeing that when subsection (4) prohibits an appeal from the latter theprohibition must extend to an appeal against any inseparable part of thelatter, such as the order for compensation. But this conclusion, as I say,is in my respectful view based upon false premises, because on a perusalof subsection (1) it appears that the order for compensation is not a partof the order for Crown costs or incapable of independent treatment.It is a separate order, made in favour of a different party, the accused,while the order for Crown costs is of course in favour of the Crown ; andbeing a separate order, there is nothing to prevent its being separatelyappealed from. No doubt it cannot be made unless an order for Crowncosts has first been made, and thus it cannot be made save in thecircumstances in which the latter can be made, namely, where the accusedhas been acquitted or discharged and the complaint has been declaredto be frivolous or vexatious. But that does not make it a part of theorder for Crown costs, or so bind it up with the latter that it cannot bedisturbed without the latter being disturbed too.
With regard to the question of disturbance, and to the passage in whichthe learned Judge concludes that—“ the order for the payment ofcompensation cannot be disturbed without at the same time disturbingthe order for the payment of Crown costs as they both rest on the samefoundation, viz., the acquittal or discharge of the accused and the declara-tion that the complaint is frivolous or vexatious ”—I would merelyobserve that, if the metaphor of a common foundation is to be pursued,then it is the order for Crown costs which forms the ground floor of thestructure (i.e. the necessary pre-requisite to support further storeys) andthe order for compensation which forms the upper storey. And it isquite feasible to disturb, and even remove, an upper storey withoutdisturbing the ground floor—though of course not vice versa. Therefore,with respect, I am unable to share the apprehensions of the learned Judgethat—“ if in every case in which an order for the payment of compensa-tion is made an appeal were to lie, it would amount to allowing a rightof appeal against the order for the payment of Crown costs ”.
Finally, subsection (1) of section 253b speaks first of ordering thecomplainant to pay Crown costs, and then of ordering him to paycompensation. Subsection (4) prohibits an appeal from an order forpayment of Crown costs. Ihe language is clear. Had subsection (4)been intended to prohibit an appeal from an order to pay compensation,it might have been expected either expressly to mention an order forpayment of compensation, or to provide that no appeal shall lie against“ any order made under this section ”. Phrased as it is, however,subsection (4) can only be construed to mean what it says, and no more.
For these reasons I would respectfully dissent from the judgment inKandiah v. RamaMngam, and adhere to the earlier and contrary decisionswhich I have cited. I accordingly hold that there is nothing insection 253b which deprives a complainant of the right of appeal froman order for compensation made against him under that section, whichright is conferred by section 338 of the Criminal Procedure Code.
Jaybtilexe S.P.J.—I agree.