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VIVIENNE GOONEWARDENE v. WIJEYESURIYA
NLR43V487
1942 Present: Hearne J.
VIVIENNE GOONEWARDENE v. WIJEYSURIYA.
449-M. C. Colombo, 40,959.
Order of attachment-Order for
attest of person by Governor-Person absconding-Attachment of
property-Application by attorney to cancel order-Defence (Miscellaneous)
Regulations, No.3.
On a report by a Police Officer to the Magistrate of Colombo that "His
Excellency the Governor had made an order against Mrs. G- in pursuance of the
powers vested in him by the Defence (Miscellaneous) Regulations-which was deemed
to be a warrant for the arrest to Mrs. G and that she had absconded or was
concealing herself so that the warrant could not be executed ", the Magistrate
published a proclamation requiring. Mrs. G to appear at a specified place and
time and also, in terms of section 60 (I) of the Criminal Procedure Code, issued
an order for the attachment of her property. Thereupon the attorney of Mrs. G
filed an affidavit in the Magistrate's Court to the effect that Mrs. G had told
him, in November, 1941 (five months prior to the Governor's order), that she was
leaving Ceylon immediately and that he had not seen or heard from her since that
date. He verily believed that she carried out her intention of leaving the
Island and moved the Court to cancel the order of attachment.
Held, that the attorney had no status to move the Court to rescind the order, as
Mrs. G must be deemed to be in contempt till she comes forward in response to
the proclamation.
APPEAL
from an order of the Magistrate, Colombo.
Crown Counsel raised the preliminary objection that there was no right of appeal
from the order of the Magistrate.
H. V. Perera, KC. (with him N. Nadarajah, KC., V. Mendis, and H. W.
Jayawardene), for appellant.-Even if there is no right of appeal the Court can
exercise its revisionary powers. It is submitted that there is no legal
foundation for the attachment order. Before a proclamation and an attachment
order are issued, it must be shown that an accused is absconding, knowing of the
warrant, or is in concealment. See In re Ramjibhai [13 Cr. L. J. 796. ] and the
case reported in 29 A. I. R. (Madras) 289. There must be some material to'
satisfy the Magistrate that the accused was absconding-(1935) 35.Cr. L. J. 1286.
"Absconding" means even if, process, i.e., the order of detention. one must be
aware of process and keep away-(1942) A. I. R. (Madras) 289.
The order of detention is "deemed to be a warrant" only for limited purposes,
namely, for purposes of execution, not for purposes of contempt. For the effect
of the phrase" deemed to be . . . . ", see Arthur Hill v East and West India
Dock Company[(1884) 9 A. C. 448 at p. 456.]
E. H. T. Gunasekera, C.C., for respondent.-It is submitted that the petitioner
had no "status" to move the Magistrate' to rescind his order of attachment The
property belongs to Mrs. G., not to her attorney. The attorney has no interest,
apart from the interests of Mrs. G. If
her interests are infringed the proper remedy is a civil action. See In re Chunder Bhon Singh[(1872) 17 Suth. W. R. (Cr.) 10.] If the petition is on behalf of Mrs. G. the Court cannot entertain it, for an absconder is in contempt and cannot be heard. The words" deemed to be a warrant" indicate that the powers of a Magistrate's Court are to be used for executing a detention order.
Cur. adv. vult.
July 30, 1942. HEARNE J.
An Officer of the Criminal Investigation Department reported to the Magistrate
of Colombo that" His Excellency the Governor had made an order against Mrs. V.
Goonewardene, in pursuance of powers vested in him by the Defence (Miscellaneous
No.3) Regulations, that the order was deemed to - be a warrant for the arrest of
Mrs. Goonewardene (Regulation 1 (9" and that she had absconded or was concealing
herself so that the warrant could not be executed". He asked the Magistrate to
publish a proclamation, requiring her to appear at a specified place and
