[1940] EACA 70

#### CRIMINAL REVISION

## Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

#### REX, Prosecutor ν.

# (1) NDEDE OKAYA, (2) HEBSON AWITI S/O OMOLO and (3) OGAJA OMWARE, Accused

## Criminal Revision Cases Nos. 230, 231 and 232 of 1941

Criminal Law—Disobedience of lawful orders—Neglect of accused to comply with summons to attend court—Penal Code, section 117.

The accused were duly summoned under section 88 of the Criminal Procedure Code to attend the court to answer charges of non-payment of Native Hut or Poll Tax, but failed to attend.

Held (22-9-41).—That disobedience to the summons constituted an offence under section 117 of the Penal Code.

Accused absent unrepresented. Spurling, Crown Counsel, for the Crown.

ORDER.—The question raised in three cases which have been brought to the notice of the Court is whether a person summoned to attend the Court in the following form:-

"WHEREAS your attendance is necessary to answer to a charge of non-payment of Native Hut or Poll Tax, 1941, section 6/1 and 2, Ord. 40 of 1934.

You are hereby commanded in His Majesty's name to appear in this Court on the 25th day of June, 1941, at 10 a.m., at Kisumu District, or so soon thereafter as the case can be heard.

Herein fail not.

Dated this 11th day of June, 1941, at Kisumu.

This summons has been issued on the application of Crown.

# . K. L. HUNTER,

First Class Magistrate."

commits an offence contra section 117 Penal Code in disobeying the summons. Section 117 Penal Code reads: —

"Everyone who disobeys an order, warrant or command duly made, issued or given by any court, officer or person acting in any public capacity and duly authorized in that behalf, is guilty of a misdemeanour, and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years.'

The case of Rex v. Zonabaliba, L. R. T. T. Supplement No. 1 of 1941, page 1, has been brought to our notice. It was there decided on the construction of an identical provision of law, "That disobedience to the summons did not constitute an offence under section 117 of the Penal Code. Section 99 of the Criminal Procedure Code provides the method by which the attendance of the accused may be secured if he fails to obey a summons issued under section 88". To our mind the fact that the Procedure Code authorizes the issue of a warrant for the purpose of bringing an accused person before the court on his failing to obey a summons does not affect the question whether he has committed an offence by his disobedience of the summons.

Take for instance the case of a witness as distinct from an accused person who has been summoned to attend. By section 140, Criminal Procedure Code, it is provided that "if without sufficient excuse a witness does not appear in

obedience to the summons, the court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him before the court at such time and place as shall be there specified". Can it be said that because this is the method prescribed by law for bringing the disobedient witness before the court that he may not be punished for his disobedience? The answer to this is contained in section 144 of the Criminal Procedure Code, which provides:-

- (1) Any person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the court, or fails to attend after adjournment of the court after being ordered to attend, shall be liable by order of the court to a fine not exceeding twenty pounds. - (2) Such fine shall be levied by attachment and sale of any movable property belonging to such witness within the local limits of the jurisdiction of such court. - (3) In default of recovery of the fine by attachment and sale the witness may, by the order of the court, be imprisoned as a civil prisoner for a term of fifteen days unless such fine is paid before the end of the said term. - (4) For good cause shown, the Supreme Court may remit or reduce any fine imposed under this section by a subordinate court.

This section to our mind expressly provides both a penalty and mode of. proceeding for the misdemeanour committed by the witness under section 117 of the Code and reduces the penalty which could have been inflicted under that section. Our reasons for this decision will appear in the course of this Order.

The first question for consideration is whether an accused person who disobeys a summons can be said to have disobeyed an order within the meaning of section 117, Penal Code. We cannot see that there should be any doubt that he does, just as, when the Indian Penal Code was in force, a person who, being legally bound to appear in obedience to a summons, intentionally omitted to do so committed an offence contra section 174 of the Indian Penal Code. The fact that a court was authorized to issue a warrant for the apprehension of the disobedient person did not affect the question whether he had committed an offence in failing to obey the summons.

(Section 73, Cap. 7, Laws of Kenya, corresponding to section 90, Criminal Procedure Code of India.)

It is true that section 174 of the Indian Penal Code refers specifically to a summons, whereas 117 Penal Code does not mention summons, but that distinction can have no possible significance, for the form of the summons in the cases under consideration is a striking illustration of an order or command lawfully issued by the court. Finding then that an accused person who disobeys a summons disobeys an order or command that person is guilty of a misdemeanour, provided of course that the summons has been "duly made, issued or given by any court, officer or person acting in any public capacity and duly authorized in that behalf".

The question then arises how is he to be proceeded against and to what is he liable for his disobedience. Section 117, after declaring that he has committed a misdemeanour, proceeds to enact that he "is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years". It seems to us that the penalty is expressly provided by the section and that the proceeding against the accused is under the section. It is to our minds a fallacy to say that, because a person who disobeys a summons in respect of a particular offence is apprehended and brought before the court on a warrant that the offence of disobedience is thereby purged. The issue of the warrant is simply for the purpose of bringing him before the court to answer the charge of having committed an offence in respect of which the summons was ineffectually issued. His disobedience is an offence quite separate and distinct.

In view of the conclusions arrived at we make no order in revision.