(1988)1988November 8 {A.LOIZOU,P..MALACHTOS,STYLIANIDES,PAPADOPOULLOS. HADJrrSANGARlS&BOYADJ1S.JJ.) POLICE, v. GEORGHIOS KYRIAKIDES. Accused. (Question of Law ReservedNo. 259). Disobedience to order of aCourt,contrary tosection 137 of the Criminal Code, Cap. 154 — Order made in the presence of accused — Whether service of the order an ingredient of the offence — Question determined in thenegative — Thatiswhy, in caseswhere criminal courts are empowered to issueorders against an accused, theiatter's presence should beinsisted upon. 5 Thefactsofthiscaseappear fromthejudgmentoftheCourt. Opinion accordingly. Casesreferredto: Mouzouris v. Xylophagou PlantationsLtd. {1977) 1C.L.R.287. 10 Question of Law Reserved. Question ofLawreservedbytheDistrictCourtofFamagusta for the opinion of the Supreme Court under section 148 of the Criminai Procedure Law, Cap. 155 as to whether in cases of disobedience ofan order oftheCourtitisessential fortheproof of 15 the case under section 137 of the Criminal Code, Cap. 154, to have servedtheorder issuedbytheCourtupontheaccused when an accused was present when the said order was made. A. Evangelou, Senior Counsel of the Republic, f o r t h e Police. G. Pittadjis, for the accused. ^ A. LOIZOU P. gave the following judgment of the Court. The DistrictCourt of Famagusta hasundersection 148of theCriminal Procedure Law, Cap. 155reserved forthe opinion of the Supreme 172 2 C.L.R. Police v. Kyriakides A. Lolzou P. Court a Question of Law which arose during the trial of the accused inthe present case. The question so reserved isthe following:5 «Whether incasesof disobedience of an order ofthe Court itisessentialfortheproof ofthecaseunder section 137ofthe Criminal Code, tohave served the order issued bythe Court upon theaccusedwhenanaccusedwaspresentwhenthesaid order was made.» The accused had been ordered by the District Court of 10 Famagusta in a criminal prosecution under section 50
(2)of the AssessmentandCollectionofTaxesLaws1978to 1987to furnish within two months as from the 26th June 1986, the necessary particularsregardinghisassets3ndliabilities.Theaccused failedto do so and he was prosecuted under section 137 of the Criminal 15 Code which readsas follows: «Everyone who disobeys any order, wan-ant or command duly made, issued or given by any Court, officer or person actinginanypubliccapacityanddulyauthorised inthatbehalf is guilty of a misdemeanour and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respectofsuchdisobedience,toimprisonmentfortwoyears.» 25 Learned counselonbothsidesagreethat service of such order on the accused person who waspresent inCourtwhen same was made is not required not bemg one of the ingredients of the offence. We have considered the position and unlike the case of disobedience of orders made in Civil cases, in which under the expressprovision of the relevant Rule, namely Order 42{a),rule 2 of the Civil Procedure Rules, an order so made has to be 30 indorsed and served on the person against whom the order is made. (See Mouzouns v. Xylofagou Plantations Ltd
(1977)1 C.L.R. 287).Incriminalproceedings there tsnogeneral provision either in the Criminal Procedure Law or the Rules made thereunder making the service of the order, upon the person 35 against whom it is made a prerequisite to proceedings for disobedience under section 137of the CriminalCode, Cap. 154. Anexamination of thewording of section 137 and in particular of the words «an Order....issued or given by any Court», to be 173 A.LoizouP. Policev.Kyriakides
(1988)found therein showsthatno service isrequired and ouranswer to the question posed isinthe negative, that isthat no service of an orderupon theperson againstwhomsameismadeinhispresence isrequired asan essentialprerequisite totheoffence undersection 137 of the Code. It is for this reason, in our view, that Courts have, as a rule, required the presence of accused persons who are charged with the commission of offences under laws which empower them to make ordersagainsttheaccused inaddition toanyothersentence that they may impose, and we trust that the presence of accused 10 persons willbe insisted upon, toavoid any problems. Withtheabove answerofthisCourttothequestion reserved by it,the case isremitted tothetrial Court. Order accordingly. 174 5