Sithamparampillai V. Murugesu

 

1941     Present: Howard C.J.

 

SITHAMPARAMPILLAI v. MURUGESU

 

824-M. C. Point Pedro, 20,480.
 

Warrant-No endorsement regarding security bond-Warrant defective- Escape from custody of Fiscal's process server no offence-Penal Code s. 219.

 

Where a warrant issued, under section 62 (1) (a) of the Criminal Procedure Code against an accused who was evading service of summons, did not contain an endorsement with regard to the execution of a bond as required by section 51 of the Criminal Procedure Code,-

 

Held, that the warrant was defective and that a public servant executing it could not be said to have acted in discharge of his public functions, nor was the person arrested in lawful custody.

 

A Fiscal's Process Server is a public servant within the meaning of section 19 of the Penal Code.

 

APPEAL from a conviction by the Magistrate of Point Pedro.

 

E. D. Cosme (with him K. C. Nadarajah), for the accused, appellant.

H. W. Thambiah for the complainant, respondent. 

Cur. adv. vult

 

January 28, 1941. HOWARD C.J.-

 

This is an appeal against the decision of the Magistrate of Point Pedro convicting the accused of charges under sections 219 and 367 of the Ceylon Penal Code and sentencing him to six months' rigorous imprison­ment on each charge, the sentences to run concurrently. Proceedings were instituted against the appellant under section 148 (b) of the Criminal Procedure Code. A written report was made to the Magistrate by one Kandappu Sithamparappillai, a Fiscal's Process Server as a public servant. Counsel for the appellant contends that the proceedings are vitiated ab iniiio inasmuch as a Fiscal's Process Server is not a " public servant" within the meaning of this term in section 19 of the Penal Code. In my opinion there is no substance in this contention. A Fiscal's Process Server is clearly within the ambit of the fifth category of descriptions specified in section 19 of the Penal Code and was more­over treated as such in the case of Wijetunge v. Podi Sinno[1 3 Brown's Reps. 57.] and Goonetilleke v. Atapattu [ 2 6 C. L. R. 63.].

 

It is also argued that the conviction of the appellant on the charge of resisting his lawful apprehension under section 219 of the Penal Code cannot be sustained because the warrant on which his apprehension was sought is defective. It is alleged that it is defective for the following reasons:-

 

(a) because it was not in the prescribed form and hence contravened section 50 of the Criminal Code ;

 

(b) because it did not contain the endorsement specified in section

 

51 (1) of the Criminal Procedure Code.

 

With regard to (a) Co

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