Legal Services and Laws of Sri Lanka


SLR-1984 Vol.2-P193

SLR - 1984 Vol.2, Page No - 193
CHANDRADASA NANAYAKKARA
v.
LIYANAGE CYRIL

COURT OF APPEAL
ATUKORALE, J. (PRESIDENT), TAMBIAH, J. AND L. H. DE ALWIS, J.
APPLICATION No. CA/APN/GEN/10/84.
JUNE 26, 1984.

Contempt of Court ? Article 105 (3) of the Constitution.

The Magistrate of Kandy had found the respondent's wife guilty of theunlawfulpossessionof1123grainsofganja,an
offence publishable under the Poisons, Opiumand Dangerous Drugs Ordinance and sentenced her to pay a fine of Rs. 2,000and
in default of payment to undergo six months rigorous imprisonment. She failed to pay the fine and was kept in the custodyof
the Fiscal officers pending removal to prison to serve the default term. The Magistrateafteradjourningthesittingsof
court for the day was in his Chambers attending to his duties. Before his wifecouldberemovedtherespondentforcibly
entered the Magistrate's Chambers carrying a child in his arms. He addressed the Magistrate in rude language, abused himand
threatened to dash the child on the floor and kill or cause bodily harm to theMagistrateifhiswifewasnotreleased
forthwith. By these acts the respondent intimidated the Magistrate into making an order fortheimmediatereleaseofhis
wife from lawful custody before she paid the fine or served thedefaultsentence,anorderwhichtheMagistratewould
otherwise have not made at that stage. A Rule was thereupon issued on the respondent by the Court ofappealtoshowcause
why he should not be punished for the offence of contempt of the Magistrate's Court of Kandy. The respondent appearedbefore
the Court of Appeal and pleaded guilty of the charge.

Held
The jurisdiction of the Court of Appeal to punish for contempt of courtincludes,interalia,thePowertopunishfor
contempt of a court of first instance (Article 105(3)oftheconstitution).Thepunishmentthatcanbeimposedis
imprisonment or fine or both as the court may deem fit.

Per Atukorale, J.

"Of all contempts committed against the lawful authority of courts of law the most heinous are those which involve actualor
threatened injury to the person of a judge with a view to intimidating him into revoking or alteringanorderordecision
mad by him in the discharge of hisjudicialduties.Theoutrageousnatureoftheactscommittedbytherespondent
constitutes not only an affront to the dignity and authority of the court but also adirectchallengetothefundamental
supremacy of the law itself. It is absolutely imperative that such conduct,wheneverorinwhatevercourtitoccurs,
should be dealt with speedily, firmly and unmercifully. People like the respondent who have but scant respect and regardfor
law and order and the courts of the land must be madetorealisethatthearmofthelawissufficientlylongand
sufficiently strong to repel any attempts at undermining the authority of courts. It is our duty in situations suchashave
arisen in the instant case to uphold and vindicate, not the personal reputation of the holder of the particularoffice,but
the sanctity and supremacy of the authority of courts so as to secure the preservation of law and orderandtoensurethe
protection of the future administration of justice. Viewed in this lightthecircumstancesofthiscasecallforvery
deterrent punishment on the respondent."

RULE for contempt.
S. W B. Wadugodapitiya, Additional Solicitor-General for the Attorney-General.
Respondent present in person.

June 26, 1984.
ATUKORALE, J.
The facts pertaining to this contempt matter as placed before us were as follows. The respondent's wife was charged incase.
No 43128/84 of the Magistrate's Court of Kandy with having been in unlawful possession of 1123 grains ofganja,anoffence
punishableunder the Poisons, Opium and Dangerous Drugs Ordinance (Cap.218). On 25.1.1984 the Magistrate of Kandy foundher
guilty and imposed on her a fine of Rs. 2,000 in default six month'imprisonment.Shefailedtopaythefineandwas
therefore kept in the custody of Fiscal officers to be removed to prison for serving the default termofimprisonment.The
Magistrate after adjourning the sittings of court for the day was in his chambers attending to his duties.Beforehiswife
could be removed, the respondent forcibly entered the Magistrate's Chambers carrying a child in his arms.Headdressedthe
Magistrate in rude language, abused him and threatened to dash the child on the floor and to kill orcausebodilyharmto
the Magistrate if his wife was not released forthwith. By these acts the respondent intimidated theMagistrateintomaking
an order for the immediate release of his wife from lawful custody before she paid the fine or served thedefaultsentence,
an order which the Magistrate would otherwise have not made atthatstage.Havingsoprocuredhiswife'sreleasethe
respondent left the Chambers.

Upon these facts being brought to the notice of this Courtby the Attorney ?General, a Rule was issued by this Court onthe
respondent to show cause why he should not be punished for the offence of contempt of the Magistrate'sCourtofKandy.He
appeared before us in response to the Rule issued on him and on the charge being read out and explained to him andonbeing
asked whether he had any cause to show he pleaded guilty to the charge. On being questioned by us he stated thathewas29
years of age. He admitted having five previous convictions for offences under the Excise Ordinance. Healsoadmittedthree
other convictions - one for cheating and two for robbery - for all of which he has been sentenced to an aggregate termof2
years 9 months and 2 weeks rigorous imprisonment. Asked to plead in mitigation he replied thathehadthreechildren.He
tendered no apology nor an undertaking not to repeat this type of behaviour. Upon a careful consideration of the abovefacts
and circumstances and of the law relating to the nature of the punishment that could beimposedbyus,wesentencedthe
respondent to a term of seven years' rigorous imprisonment and indicated that we would give our reasons fordoingsotoday
(13.7.1984). Accordingly we set out our reasons herein.

The offence of contempt to which the respondent has pleaded guilty is criminal in nature. Some of the acts committedbyhim
are punishable under the Penal Code. A Magistrate's Court isoneoftheinstitutionscreatedandestablishedforthe
administration of justice in this country. For this purpose a Magistrate isentrustedwiththeperformanceofimportant
judicial functions and duties. In the course of the performance of such functions anddutiesheiscalledupontomake
various decisions and orders. There is no decision or order he can make which cannot be challenged. Butthechallangemust
be by an appropriate application or proceeding made to this court in accordance withlaw.Itcannotbechallengedbya
violent display of verbal threats or open defiance directed at the Magistrate himself. Ofallcontemptscommittedagainst
the lawful authority of courts of law the most heinous are those which involve actual or threatened injury to thepersonof
a judge with a view to intimidating him into revoking or altering an order or decision made by him in thedischargeofhis
judicial duties. The outrageous nature of the acts committed by therespondentconstitutesnotonlyanaffronttothe
dignity and authority of thecourt but also a direct challenge to the fundamental supremacy of the law itself. It is atype
of contemptuous conduct which appearedto us to be umprecedented in theannalsofthecourtsofthiscountry.Itis
absolutely imperative that such conduct, whenever or in whatever court it occurs, should be dealt with speedily,firmlyand
unmercifully. People like the respondent who have but scant respect and regard for law and order and the courts oftheland
must be made to realise that the arm of the law is sufficiently longandsufficientlystrongtorepelanyattemptsat
undermining the authority of courts. It is our duty in situations such as have arisen intheinstantcasetoupholdand
vindicate, not the personal reputation of the holder of theparticularoffice,butthesanctityandsupremacyofthe
authority of courts so as to secure thepreservationoflawandorderandtoensuretheprotectionofthefuture
administration of justice. Viewed in this light the circumstances of this case call forverydeterrentpunishmentonthe
respondent.

The jurisdiction of the Court of Appeal to punish for contempt of courtincludes,interalia,thepowertopunishfor
contempt of a court of first instance - Article 105 (3) of the present Constitution. The punishment that canbeimposedby
us is imprisonment or fine or both " as the court may deem fit." The extent of the punishment thatshould bemetedoutis
left to our discretion. Our attention was drawn by learned Additional Solicitor General to S.800oftheCivilProcedure
Code. Prior to the repeal of this section by S. 20 of the Civil Procedure Code (Amendment) Act, No. 53 of 1980,theSupreme
Court the Court (later the Court of Appeal) was empowered to impose a sentence of imprisonment (simpleorrigorous)fora
term not exceeding 7years and a fine not exceeding Rs. 7,000 in addition thereto or in lieu thereof. Thissection,though
repealed now, would serve as a guide to the extent of the punishment that may be imposed by us depending, of course,onthe
facts and circumstances of each case. The fact that the respondent has 3 children is not a ground of mitigation. Itdidnot
even evoke any sympathy from us for it is one of them that the respondent threatened to dash on the floorintheimmediate
presence of the Magistrate. We were conscious of the fact that the respondent may have acted in thewayhedidoutofa
sense of sheer desperation rather in a spirit of bravado. But if he paused to think for a moment he would have realisedthat
there were legal remedies open to his wife. He would also not have failed to realise that the desperatesituationinwhich
he thought he found himself was brought about by none other than his own wife by havinghadinherpossessiongrainsof
ganja and certainly not by the Magistrate. Although he is a young man of 29 years he has had alreadyseveralconfrontations
with the law for some of which he has been sentenced to terms of imprisonment. On a most anxious consideration ofallthese
matters and particularly the nature and the gravity ofthe contempt committed bytherespondentwetooktheviewthat
nothing less than7 years rigorous imprisonment would have constituted adequate punishment for him.

TAMBIAH, J. ? I agree.
L. H. DE ALWIS, J. I agree.
Respondent committed to prison.


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