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DEPUTY FISCAL KEGALLA v. TIKIRI BANDA
NLR29V443
1928 Present: Jayewardene A.J.
DEPUTY FISCAL, KEGALLA v. TIKIRI BANDA.
316-P. C. Kegalla, 8,930.
Warrant-Arrest of judgment-debtor-Not signed by Judge-Validity-Escape from
legal custody-Penal Code, s. 220.
A warrant, which is issued for the arrest of a judgment-debtor in terms of
section 219 (2) of the Civil Procedure Code and Which is not signed by the
Judge, is void.
A person who escapes from the custody of an officer purporting to execute such a
warrant is not guilty of an offence under section 220A
' of the Penal Code.
APPEAL from a conviction by the Police Magistrate of Kegalla,
Navaratnam (with
de Zylva), for accused, appellant.
Ferdinands, for complainant,
respondent.
Schokman, C.C., for Attorney-General, as amicus curiae.
July 11, 1928.
Jayewardene A.J.-
This case was first argued before me on June 15, when there was no appearance
for the respondent, and I desired that notice be issued to the Attorney-General.
Counsel appeared for the respondent at the second hearing, and I heard Crown
Counsel on behalf of the Attorney-General as amicus curiae.
The accused was charged with escaping from the custody of a Fiscal's poen in
which he was lawfully detained, having been arrested under a warrant in civil
case No. 6,856 of the District Court of Kegalla, an offence under section 220a
of the Penal Code. The accused was convicted and sentenced to pay a fine of Rs.
100.
The facts of the arrest and escape were not seriously disputed. The only
question for decision is whether the warrant on which he was arrested was good
in law. The warrant was issued in a civil case-D. C. Kegalla, 6,856, under
section 219 (2) of the Civil Procedure Code, which empowers a Court to issue a
warrant for the arrest of a judgment-debtor who fails to comply with an order
made under that section for his attendance. The warrant was issued in accordance
with an order of the Court. It did not bear the signature of the District Judge,
but at the foot were the words " By order of Court, (signature) Secretary."
It is contended that the warrant was invalid inasmuch as it was not signed by
the Judge, and that there was no legal arrest.
Chapter XVII of the Civil Procedure Code contains provisions in regard to
witnesses and their attendance. The Court, in the first instance, would issue a
summons under section 121. The summons may be signed by the Secretary, according
to form No. 32 in schedule II. If the witness fails to comply with the summons,
the Court may order him to be arrested and brought before the Court, under
section 137. A form of warrant of arrest against a witness for disobedience to
summons is given in schedule II. It is form No. 39. The warrant must, according
to that form, be signed by the Judge.
So, again, the warrant for the arrest of a judgment-debtor under section 305 has
to be signed by the Judge, as shown in form No. 60.
The summons to a person accused of contempt of Court under section 793 must be
signed by the Judge, and so must the warrant under section 794 (forms 132 and
1.33).
It would thus appear that a warrant must, under the Civil Procedure Code, be
signed in every case by the Judge himself. An enactment giving a power of
committal for non-payment of a debt is a highly penal one, and must be strictly
construed. (Costa v. Perera.1) Lord Esher remarked in
Scott v. Morley
2: "If you
treat the Debtors Act as an Act which authorizes the Court to commit people to
prison, then you must construe it strictly. It is a highly penal Act, affecting
the liberty of the subject."
In Wills v. Sholay Kangany,3
de Sampayo J. commented on the impropriety of issuing warrants on insufficient
material. He observed: " the issue of a warrant is a serious matter, and the
Magistrate should exercise his own independent judgment on the facts before he
does this judicial act." His observations apply equally to the issue of warrants
in civil cases. The Judg
