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Present: Dalton J.
BABI NONA v. WIJEYSINGHE.
734—P. G. Balapitiya, 8,227.
.-Ippcaf—Charge based on written report by Inspector of Police—Aggrievedparty—/tight of appeal—Criminal Procedure Code, s. 338,
Where proceedings arc instituted in the Police Court on awritten report by a police officer ihc aggrieved parry has noright of appeal.
PPEAL from an order by the Police Magistrate of Balapitiya.
The proceedings in the Police Court were instituted by theSub-Inspector of Police, Kosgoda, under section 148 (1) (b) of theCriminal Procedure Code. The charge as 6et out in the report ofthe Sub-Inspector was voluntarily causing hurt to Babi Nonawith a katty. After taking some evidence the Magistrate referredthe injured party to the Village Tribunal.
N, E, Weerasooriya (with Batuwantudaiva), for complainant,appellant.
December 2, 1926. Dalton J.—
The appellant in this case is, according to the petition of appeal,one Karavitavitannge Babi Nona, who is also stated in the petitionto have been the complainant in the Court below. It is agreed,however, that the proceedings in the Police Court were institutedby the Sub-Inspector of Police, Kosgoda, under the provisions o£section 148 (1) (b) of the Criminal lVocedure Code. The chargeset out in the written report signed by the Sub-Inspector is one ofvoluntarily causing hurt to Babi Nona with a katty. After takingsome evidence the Magistrate made an order referring ** the injuredperson M to the Village Tribunal. From that order the Sub-Inspector does not appeal; this appeal being lodged, as I have stated,by Babi Nona. In the course of his order he deals with objectionsraised before him against such an order being made.
In this Court there has been no appearance on behalf of therespondent, and therefore I have not had the benefit of any argu-ment against the contentions put forward by Mr. Weerasooriya.
The first question to be decided is whether Babi Nona has anyright of appeal; the parties to the proceedings in the lower Court-being the Sub-Inspector, who instituted the proceedings, and theaccused person, Don Oralias Wijesinghe. She may well be dis-satisfied with the order of the Court, but is she a party in the case
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1929. to whom the right of appeal is given within the meaning of sec-DaltonJ. tion 388 of the Criminal Procedure Code. She did not institute2^-7 the proceedings, although she could have done so, had she wished,^ZVona un(|er the provisions of sub-section (1) (a) of section 148 of theWijeytinghe Criminal Procedure Code. I have heard nothing from Mr. Weera-sooriya which satisfies me that Babi Nona is a party in the caseas instituted. As I pointed out in Nonis v. Appuhamy,1 it wouldappear that where section 148 provides for the institution of proceed-ings by complaint or written report, the person making the complaintor written report is regarded as the party instituting the proceedingsagainst the accused person. This matter has been consideredfrom another aspect in Sedris v. Singhp,2 but the Court there left itto await further elucidation. On the facts before me in this appeal,I have come to the conclusion that Babi Nona has no right ofappeal, and therefore her appeal must be dismissed.
The further questions raised, first, as to whether the offencecharged, which is laid under section 315 of the Penal Code, fallswithin the schedule of Ordinance No. 9 of 1924 (The "VillageCommunities Ordinance) as held by the Magistrate, and second,whether Babi Nona can avail herself of the provisions of section 61of that Ordinance by taking advantage of the fact that the pro-ceedings were instituted by a public officer, thus ousting the exclu-sive jurisdiction of the Village Tribunal, therefore need not bedecided. So far as these points were argued, I have very con-siderable doubts as to the soundness of the reasoning of the learnedMagistrate upon which he arrives at his conclusion on the first andalso as to the correctness of his order; on the second, it is difficultto see what assistance section 61 affords the present appellant.
The appeal must, for the reason 1 have stated, be dismissed.
21 N. L. B/430.
* 23 N. L. R. 171.