Herathhamy v. Muhammadu.
1934Present: Akbar J.
HERATHHAMY v. MUHAMMADU et al.
830—P. C. Kegalla, 22,199.
Appeal—Charge of obstruction to Fiscal’s Officer—Charge fails owing to defectof warrant—Penal Code s. 220a, Criminal Procedure Code s. 191.
Where in a charge, under section 220a of the Penal Code, of offeringobstruction to a Fiscal’s Officer, the Magistrate, after examining thecomplaint and another witness, made order that the charge failed owingto a defect in the warrant,—
Held, that the order was one of discharge under section 191 of theCriminal Procedure Code.
PPEAL from an order of the Police Magistrate of Kegalla, dis-charging the accused on a charge under section 220a of the Penal
E. Navaratnam (with him J. R. Jayewardene), for complainant,appellant.
H. V. Perera, for accused, respondents.
AKBAR J.—Hemthhamy v. Muhammadu.
January 24, 1934. Akbar J.—
This is an appeal, with the sanction, of the Solicitor-General, against anorder of the Police Magistrate discharging the accused on a charge undersection 220a of the Ceylon Penal Code. Mr. Perera took the preliminaryobjection that the appeal was out of time. It is admitted by Mr. Nava-ratnam that if the order by the Police Magistrate was one under section191 of the Criminal Procedure Code the appeal would be out of time,but his contention was that the verdict of the Magistrate was one equiva-lent to an acquittal under section 190 of the Criminal Procedure Codeand that the appeal was rightly preferred.
The only question I have to decide is whether the order is one undersection 191 or section 190 of the Criminal Procedure Code. The Magistratehimself, a Magistrate of considerable experience has used the word* “ discharge ” in his order, and the proceedings seem to show that hedecided the preliminary point whether the civil warrant under which thearrest was made was valid before he tried the case on the facts.
The plaint is signed by the process-server who was obstructed and givesthe names of two witnesses. After the complainant was examined, theMagistrate records as follows: “ I adjourn the inquiry to enable thedefence to find out whether an endorsement by the Fiscal to his sub-ordinate officer who executes the warrant is not essential ”. On theadjourned date a new witness (not named in the plaint), viz., the AdditionalDeputy Fiscal, was called, and after argument of counsel the PoliceMagistrate recorded as follows: “ I shall make my order regarding thevalidity of the warrant before I try the case on the facts ”. He beginshis order by saying that “ it is useless proceeding further with this case.In the first place the warrant is ex facie defective in that the warrantwas made returnable at the Fiscal’s Office on May 30, 1933, while the arrestwas made on the 31st of May, and secondly the complainant is not anofficer duly appointed under section 8 of the Fiscal's Ordinance, No. 4of 1867 ”.
It will thus be seen from the record that the order was an order ofdischarge under section 191 of the Code and not an adjudication on themerits of the case after the close of the case for the prosecution. Theconverse case of Gabriel v. Soysa1 does not help the appellant, because inthat case after the complainant was examined and cross-examined theproctor for the accused submitted -that the warrant was bad; or .in otherwords the accused’s proctor did not deny the facts but based his wholedefence on the illegality of the warrant. Garvin J. was of opinion “thatthe Magistrate intended to acquit the accused because in his view thewhole prosecution failed ”. The judgment ends as follows: “ In thiscase the prosecutor does not even complain that he had evidence to offerwhich would have influenced the judgment of the Magistrate or whichshould have been considered by him before he acquitted the accused ”,
In the case before me, the Magistrate adjourned the case for a decisionon a point of law and it is clear that if he had held the point of law infavour of the complainant the case would have to proceed further on thefacts.
* 30 -V. L. It. 314.
DALTON J.—King v. Sabapathy.
My own judgment In 928, P. C. Point Pedro, 1,574 (S. C. Minutes '112.1932) in which I followed Gabriel v. Soysa (supra) is to the same effect.The following is an extract from my judgment:—“ So that it will be seen-that in this case the complainant’s case had been closed in the sense thathad it not been for the legal objection the case would have been closed."In Dyson v. Khan1 and 934, P.C. Colombo, 26,978 (S. C. Minutes, 3.2.1932),the prosecution had closed its case and the order was held to be an orderunder section 190 of the Criminal Procedure Code. In the case nowbefore me the order was an order of discharge under section 191 of theCriminal Procedure Code and the complainant could have appealedwithout the sanction of the Attorney-General. The appeal is out of-time and must be dismissed (Banda v. Dalpadado ’). If the Magistratewas wrong in his law when he made his order discharging the accused(on which I offer no opinion) ■ perhaps the procedure indicated in Sena-•ratne v. Lenohamy* and Davidson v. Appuhamy * can still be followed.
HERATHHAMY v. MUHAMMADU et al