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Present ; De Sampayo J.
FERREIRA, v. JAYASEKERA.178—M. G. Galle, 8,072.
Stamp duty—Petition of appeal—Appeal by an officer of the Municipal Council,with the sanction of the Solicitor-General.
A petition of appeal by an officer of a Municipal Council is notexempt from stamp duty.
rJ,HE facts appear from the judgment.
E. W. Jayawardene, for appellant.
March 4, 1918. De Sampayo J.—
This was a prosecution brought by an Inspector of the Munici-pality of Galle against the accused, for having turned loose orsuffered to be turned loose in a public road a cow, in breach ofsection 94 (1) of the Ordinance No. 10 of 1861. The Magistrateacquitted the accused on the authority of the decision of this Courtin P. C. Ratnapura, No. 7,668, of November 24, 1917, that in theabsence of a positive act on the part of the accused he could not beprosecuted, because the animal merely strayed on to the public road,as appears to have been the case. The complainant thereupon filedan appeal, with the sanction of the Solicitor-General. When therecord came to the Registry it was observed that the petition ofappeal did not bear a stamp of Rs. 5, as required by section 340 (3)of the Criminal Procedure Code, and on reference being made tothe Police Magistrate, the proctor for the complainant contendedthat the petition of appeal was exempt from stamp duty, and wishedthe matter to be discussed in this Court. I have heard Mr. E. W.Jayawardene, who appeared for the appellant, on this point. Inmy opinion the petition of appeal is not exempt from stamp duty.Mr. Jayawardene has argued that the second proviso to the provisionof the schedule to the Stamp Ordinance with regard to stamps inthe Police Court covered the case. In the provisions relating toPolice Courts the Ordinance requires a stamp of 30 cents for thecomplaint or charge and 18 cents for a summons. Then comesseveral provisos. The first of them is that when a complaint ismade orally, a stamp shall be supplied for the purpose of beingaffixed to the written record of the complaint. The next is thatwhen the complaint or charge is made by an officer of Government,
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or by a Police or Municipal officer, or officer of a Local Board, orthe Board of Improvement, Nuwara Eliya, or of a Provincial orDistrict Hoad Committee, Board of Health, or Sanitary Board, inthe execution of his duty, or by a Government renter in mattersrelating to his rent, no stamp duty shall be payable. The lastproviso is that it shall be lawful for the Magistrate, on being satisfiedthat complainant has a fair ground of complaint but is unable tosupply stamps for the plaint and summons or subpoenas, or thatthe defendant is unable to supply stamps for subpoenas, to allowsuch complaint to be filed, and such summons and subpoenas tobe issued without stamps. It is the second of these provisions thatMr. Jayawardene relies upon, and his argument is that the words“ no stamp duty shall be payable ” is a general exemption of allproceedings in a case of the kind contemplated, including even thepetition of appeal. It is obvious, however, that the provisos mustbe read with the main provision as regards stamps, which hasreference only to a charge or complaint in the Police Court. Forany provisions with regard to stamps in the petition of appealreference must be made to the Criminal Procedure Code. Sub-section (3) of the section already referred to, while it enacts that thepetition shall bear a stamp of Bs. 5, empowers the Police Court toaccept the petition of appeal and to allow the payment of the stampfee to stand over until judgment in the appeal shall, have beengiven. Sub-sections (4) and (5) then provide that if the apppeal irin whole or in part, in favour of the appellant, the amount of stampfee if previously paid shall be returned to him, and that if theappeal is against the appellant, and such fee has not been paid, thesame shall be paid by him or recovered from him in the way of fine,unless the Supreme Court shall deem fit to remit all or any part ofsuch stamp fee, in which case only such part as shall not be soremitted shall be recovered. Here, again, for the purpose of givingeffect to these two sub-sections, the Police Court must, to beginwith, exercise its power under sub-section (3), and allow the paymentof the stamp duty to stand over until judgment in appeal shallhave been given. There is no suggestion in this case tbat thePolice Magistrate purported to exercise any such power.All that
he did was to accept the petition of appeal, without applying hismind to the question of stamps. Indeed, in reply to the communi-. cation by the Registry, he himself says that he is unable to find anyprovision whereby the Municipality is exempted from payment of'stamp duty in criminal appeals, and he makes no reference to anyexercise of his power under sub-section (3) of section 340 of theCriminal Procedure Code. Mr. Jayawardene also refers me tosection 36 of the Stamp Ordinance concerning the re^stamping ofdocuments, but that obviously has regard only to instrumentsproduced in evidence. The petition of appeal is not an instrumentof that kind. I regret that I have to hold that this appeal is not
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in order, because I am informed this appeal is taken as a test, therebeing many other prosecutions of the same kind pending in thePolice Court of Galle. It is possible, of course, to bring up the realpoint intended to be submitted in appeal in . connection with anyof the other cases.
The appeal is therefore rejected.
FERREIRA v. JAYASEKERA