Saudi Bakari Kionywakin V. R., Crim. App. 714-D-67, 6/11/67, Biron J.

Saudi Bakari Kionywakin V. R., Crim. App. 714-D-67, 6/11/67, Biron J.

Accused was convicted of wrongful confinement. [P.C. s. 253]. He was a divisional executive officer in charge of self help scheme. In his capacity as a justice of the peace, he issued a warrant for the arrest of complainant on a charge of obstructing the project contrary to Penal Code section 89C (1) after the complainant had refused to participate in the project. Accused accompanied a special constable who arrested and handcuffed the complainant. He and the constable fled when the complainant’s uncle threatened them with a spear, but the handcuffs were not removed for some twenty hours.

            Held: (1) The substantive element of an offence under Penal Code section 89C(1) is dissuading others from participating in a self-help scheme, and the mere refusal to take part does not constitute an offence under that section. Therefore the arrest of complainant was unlawful. (2) Section 60(1) of the Magistrates’ Courts Act provides that “No….. justice shall be liable to be sued in any court for any act done or ordered to be done by him in the exercise of his functions ….. as a justice, whether or not such act is within the limits of his or the court’s jurisdiction, if ….. he believed in good faith that he had jurisdiction to do such act or make such order.” Although this section applies specifically to immunity from civil process or liability, a fortiori such a person is immune from criminal liability for such an act. (3) ‘Judicial functions’ (functions of a justice) are defined as all acts emanating from, and appropriate to, the duties of the office of a judge, and includes the issuing of a warrant of arrest. [Citing Calder v. Halket, 18 Eng. Rep. 293; Ratanlal and Thakore, The Law of Crimes, 14^th Edn., p. 148] (4) The trial court erred in failing to consider whether accused believed in good faith that he was acting within his jurisdiction.

            The Court stated, obiter: (1) Section 16 of the Penal Code, which provides that “(A) Judicial officer is not criminally responsible for anything done ….by him in the exercise of his judicial functions, although the act done is in exercise of his judicial functions, although the act done is in excess of his judicial authority, ……” applies not only to persons

Exercising a regular judicial office, but extends to any person whose duty it is to adjudicate upon the rights, or punish the misconduct, of any given person, whatever form the proceedings may take and however informal they may be . The criterion is the nature of the act rather than the status of the actor. [Citing Tozer v. Child, 119 Engl. Rep. 1286, KBD, and Ashby v. White, cited therein; Ratanlal and Thakore, op. cit., at p. 147.] (2) This section apparently is much broader than section 77 of the Indian Penal Code, in that it extends not just to judges but of all judicial officers and does not require that they act in good faith. The court stated that the generality of the immunity was “a matter for the legislature to concern itself with”, and declined to rest its decision on this section.