SWAN- J.—Jaye ward ena v. Dharmaratna
1951Present: Swan J.
G. P. JAYEWAEDENA, Appellant, and G. D. P. DHARMARATNA(Inspector of Police), Respondent
S. C. 1,173—M. O. Colombo, 18,941
Withdrawal of charge hy complainant—Duty of Magistrate to acquit accused,—-Information Book—Use of it to frame additional charges—Criminal breach oftrust—A. necessary ingredient—Penal Code, s. 392—Criminal ProcedureCode, ss. 122 (3), 195.
Where a prosecuting officer moved to withdraw a pending summary case-on the advice of the Attorney-General
Held, that in such a case, if the Magistrate is satisfied that sufficient grounds-have heen shown, he is obliged, under section 194 of the Criminal ProcedureCode, to permit the withdrawal of the case.
Held further, that the offence of criminal breach of trust cannot be committedin respect of an article which has been rejected and is valueless. In such acase, the accused cannot be said to have acted dishonestly.
Obiter : Section 122 (3) of the Criminal Procedure Code does not entitle aMagistrate to use the Information Book to frame additional charges againstan accused person.
.^^LPPEAXi from a judgment of the Magistrate’s Court, Colombo.
JET. V. Perera, K.C., with G. E. Chitty, for the accused appellant.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 17, 1951. Swan J.—
In this case the appellant was charged by the Borella Police underSection 370 of the Penal Code with theft of six packets of cat-gut, propertyin possession of the Government, valued at Rs.15, alternatively underSection 392 with Criminal Breach of Trust of the said packets.
Before the trial the prosecuting Inspector moved to withdraw thecharge alleging that he was making the application as he “ had beendirected to do so as the Attorney-General, who originally directed thePolice to file plaint in the above case, has after consideration thought it •advisable to deal with this matter Departmentally ”.
The application was made by way of a written motion dated 24thAugust, 1951. On this motion the learned Magistrate made the followingorder :—
“ Support on Bench giving reasons for this application.”
When the case was called on the Bench, Mr. J. M. H. Toussaint, A. S. P.,supported the application reiterating the grounds set out in the motion.
SWAN- J.—Jayewardena v. Dharmaraina
The learned Magistrate informed the A. S. P. that ct sufficient groundsshould be shown ” and refixed the matter for hearing. On the nextdate Mr. Toussaint again appeared in support of the motion and stated:—“ The Attorney-General on further consideration has advised thePolice to withdraw this case as there is not sufficient evidence to provethat the cat-gut in question was serviceable, or that the cat-gut wasremoved for the purpose of sale. Therefore no value can be attachedto the cat-gut.”
The learned Magistrate then made order refusing the application,stating that he was not satisfied that sufficient grounds had been shown.
In my opinion no better grounds could have been shown than that theapplication to withdraw the case was made on the advice of the Attorney-General. But the learned Magistrate resolutely and obdurately refusedto be satisfied. In the course of his order the learned Magistrate madethe following observation :—
“ Even if sufficient grounds are shown the discretion still lies withthis Court whether it would permit a withdrawal of this case.”
Section 195 of the Criminal Procedure Code provides as follows :—
“ If a complainant, at any time before judgment is given, in anycase under this chapter, satisfies the Magistrate that there are sufficientgrounds for permitting him to withdraw the case, the Magistratemay permit him to withdraw the same and shall thereupon acquit' the accused, but he shall record his reasons for doing so.
Provided, however, that nothing herein contained shall be takento extend the powers of a Magistrate to allow the compounding ofcases under the provisions of Section 290.”
In the context the words “ the Magistrate may ” only mean “ it shallbe lawful for the Magistrate to ” and nothing more. It is not correct tosay that if the grounds are sufficient the Magistrate has a further choicein the matter. The sufficiency of the grounds may be within the dis-cretion of the Magistrate but, if the grounds are sufficient, he is notmerely empowered to permit the withdrawal of the case but obligedto do so. When a power is granted to a judicial officer to do a certainthing for a person for whose benefit the power is to be exercised, thatpower may make it his duty sto exercise that power when called upon todo so.
The case then took a curious turn. The learned Magistrate chargedthe accused afresh. The fresh charge appears in Summary Eorm 1band involves certain new matter, namely, that the accused committedtheft of, alternatively, breach of trust of “ one B. D. Yale G. 5020 syringewith two needles, two bulbs of strychnine hydrochloride, two bulbs ofemetin hydrochloride and a bottle containing carminative mixture ”.
Erom what source the learned Magistrate obtained the materialupon which he framed the added charges one is unable to gather. If heobtained it by looking into the Information Book I would say it washighly improper. Section 122 (3) of the Criminal Procedure Code tellsus when a criminal Court may send for the statements made to a Policeofficer or inquirer, adding that the Court “ may use such statements or
SWAN J.—Jayewardena v. X>harmaratna
information, nob as evidence in the case but to aid it in such inquiry ortrial”. I do not think that the section gives a Magistrate the right touse the Information Book to frame additional charges against an accusedperson.
The matter of the application to withdraw the case was revived inanother guise on 24th September, 1951. Mr. Chitty appearing for theaccused submitted that as the Attorney-General had directed the Policeto withdraw the prosecution the provisions of Section 195 of the CriminalProcedure Code did not apply and that the English Law was applicablein view of Section 6. The learned Magistrate then made an order inwhich he dealt with the powers of the Attorney-General to enter aNolle prosequi, observing that there was no corresponding provision asregards summary trials by Magistrates. In the course of his orderhe made the following remark :—
“It is reasonable, therefore, to presume that the Legislature in-tentionally omitted giving the Attorney-General such a power in asummary trial.”
I wonder if the learned Magistrate realized that this was not a summarytrial pure and simple, that it was a case in which he assumed jurisdictionas District Judge. However, the propriety and correctness of his secondorder cannot be questioned. He had already made order refusing thecomplainant’s application to withdraw the case, and the accused couldnot canvass that order by bringing up the same matter in another form.
After trial the learned Magistrate acquitted the accused of the additionalcharges which he himself had thought fit to frame, and, in respect of theoriginal charges made by the Police, convicted the accused of attemptingto commit breach of trust of 6 packets of cat-gut. One is tempted tosay ‘‘ the mountain hath laboured and brought forth a mouse ”.
Learned Crown Counsel did not seek to support the conviction. Inmy opinion the conviction cannot stand. The essential element ofcriminal breach of trust has not been established, namely, that theaccused acted fraudulently and dishonestly with intent to cause wrongfulgain to himself or wrongful loss to the Department. The cat-gut inquestion was, according to the accused, material that had been rejectedby the surgeons and therefore unserviceable. He took the 6 packetsbecause he regarded them as of no value. Dr. ft. B. Perera, a witnessfor the defence, said that unserviceable cat-gut, like old X’Ray films,were “ just thrown away ”. Dr. G. Cooke, a witness for the prosecution,admitted that whereas in the case of any Government article that hasto be condemned a Board of Survey is necessary, with regard to con-sumable articles such as drugs and suture-gut a Board of Survqv wasnot necessary. “ If they are rejected by the Surgeon,” he said, " thereis an end of the matter.” The learned Magistrate appears to havethought that the accused may have taken good cat-gut from stock andnot rejected cat-gut that was valueless. There is absolutely no evidenceto justify this speculation.
I set aside the conviction and acquit and discharge the accused.
C. P. JYEWARDENA ,Appellant , and G. D. P. DHARMARATNA (Inspector of Police), Re