TJTHTT.T, J.—Abdul Majeed v. Cassim.
1939Present : Nihil I J.
ABDUL MAJEED v. CASSIM.520—M. C. Badulla, 28,485.
Criminal procedure—Proceedings on written report of headman—Discharge ofaccused—Power of Magistrate to reopen case—Criminal ProcedureCode, s. 191 (Cap. 16).
A Magistrate has no power to reopen proceedings in a case where theaccused has been discharged under section 191 of the Criminal ProcedureCode or by an order which in its legal effect is an order under that section.
^^PPEAL from a conviction by the Magistrate of Badulla.
W. E. Abeykoon, for accused, appellant.
No appearance for respondent.
Cur. adv. vult.
December 19, 1939. Nihill J.—
In this case proceedings started on a written report dated November7, 1938, by a Headman in terms of section 148 (1) (b) of the CriminalProcedure Code. On the same day the Magistrate recorded as follows: —“Arachchi not proceeding, accused discharged, cite compliant for21.11.38.”
I do not follow why the learned Magistrate thought it necessary tocite the complainant to appear. Since these proceedings did not beginby way of summons issued on a compliant, the Magistrate’s dischargeorder was not an acquittal under section 194 of the Code, that is to saypursuant to section 148 (1) (o), but in its legal effect was an order under» (1938) 12 r. h. W. 162.-* (1938) 18 C. h. Sec. 120.
NIHILL J.—Abdul Majeed v. Cassim.
section 191. This being so, the Magistrate had no power to reopenthe proceedings when the complainant, on whose complaint the Head-man’s report had been based, did put in an appearance.
On this ground alone the conviction cannot stand, for there is ampleauthority to show that whilst an order of discharge cannot be availed offor the plea of outrefois acquit in the event of a fresh prosecution, aMagistrate has no power to reopen proceedings in a case where theaccused has been discharged under section 191 of the Criminal ProcedureCode, or by an order which in its legal effect is an order under thatsection. (Sethu Caruppen v. Odaiyar '.)
I have also been urged by Counsel for the appellant to acquit theaccused on the grounds that the facts put before the Magistrate for theprosecution, even if taken at their highest, fail to prove a charge of theft.It is submitted that even if the rice was taken by the accused out of thecomplainant’s possession, it was not taken “ dishonestly ” within themeaning of sections 366 of the Penal Code, since it was taken to satisfy adebt admittedly due to the accused from the complainant.
I do not think however that the facts in this case entitle me to reachthis conclusion. It was clearly established that the complainant didowe Rs. 12 odd to the accused, and that the accused warned him that ifhe did not pay at once he was going to his store to remove the paddy.But if the prosecution evidence is true, the accused took advantage ofthe complainant’s absence from town to go to his store and removetwenty bushels of paddy which at the then current price of Re. 1.50per bushel was a quantity much in excess of the debt due to him.
Putting this at its best, this was a most high-handed exercise of amistaken right to- enforce payment and in view of the quantity allegedto have been taken, I do not think it is possible to conclude that therewas clearly no dishonest intent in the accused’s mind. He may haveseized the occasion to inflict a wrongful loss on the complainant and awrongful gain to himself. Furthermore, the accused’s defence doesnothing to allay this suspicion.
The facts are clearly distinguishable from the case of Ponnu v. Sinna-tambi2, which was cited to me, for there the accused removed thecomplainant’s cattle from a gazing ground of which they were therenters because the complainant owed them grazing fees. The cattlewere not even in the complainant’s possession at the time. Indeedin that case it appears to me that it might have been shown that theaccused merely removed the animals from a place they had no rightto be in.
For these reasons although I allow the appeal and set aside the convic-tion, I make no order which would put the accused beyond the jeopardyof another trial. At the same time I do not go so far as to say that theends of justice demand a further prosecution in this case. In its originthe matter arose over the matter of a debt between two traders andcertainly justice will not be outraged if the two now come together andmake an amicable settlement. In the event however of a fresh prosecu-tion being instituted, the case should go before another Magistrate.
1 24 X. L. R. 248.
* 11 C. L. W. 110.
ABDUL MAJEED v. CASSIM