SAMERAWTCKRAME, J.—Thirunayagham c. Inspector of Police, Jaffna 1G1
Present : Saraerawickrame, J.
J.THJRUNAYACHAM, Petitioner, and INSPECTOR OF POLICE,JAFFNA, and another, Respondents
S. 0. 29SjGS—Application in Revision in M. C. Jaffna, 33722
Criminal Procedure Code—Section 410—Charge of theft—Acquittal of accused—
Disposal of property xuhich was the subject-matter of the charge.
In a prosecution for (heft of certain articles the accused was acquitted on 1 OthMarch 1068. An inquiry as to whether the articles belonged to the accused orto the virtual complainant was fixed for Sth April 1 f f>8. Cn that day theaccused failed to appear and the Magistrate, after hearing the evidence given bythe complainant, made order for the delivery of (be articles to the complainant.In the present application in revision tho accused moved to have the order ofthe Magistrate set aside on tho main ground that, as no offence hod beencommitted, it was the duty of the Magistrate to have returned the articles tothe person from whom they had been seized.
Held, that it is open to a Magistrate, where special circumstances exist, toorder property to bo delivered to a person other than the person from whosepossession it was seized. There was no reason, in the present applied ion, forthe cxerciso of tho Court’s extra-ordinary powers of revision.
Application to revise an order of the Magistrate’s Court, Jaffna.li. Manikkavasagar, for the accused petitioner.
Lalilh Rodrigo, Crown Counsel, for the Attorney-General.
A. T. Williams, for the 2nd complainant-respondent.
Cur. adv. vult.
August IS, 1969. Samekawjckrame, J.—
Tim accused-petitioner has made this application for revision of theorder made by the learned Magistrate directing that fishing nets andpoles that had been produced in the case should be delivered to AnthonySebamalai the virtual complainant in the case. At the trial the accused-petitioner, whostood charged with the theftof these articles, was acquitted
1G2 SAMERAWICRRAArE, J.—Tkiruna'ja'jham v. Inspector of Police, Jaffna
on 19th March, 196S. On that day he claimed the nets and the poleswhile the complainant made a counter-claim. The matter was fixed forinquir}- for 8th April, 1‘JGS. On that date the accused-petitioner failedto appear. The complainant-respondent gave evidence on oath andstated that the nets and poles belonged to him and the learned Magistratemade order for the delivery of the nets and poles to him. The accused-petitioner lias, in his petition, stated that lie heard the date of inquiryas Sth May, 19GS, and that when he went to the Magistrate’s Court onSth May, 19GS, ho found that the inquiry had been concluded and anorder made in favour of the virtual complainant-respondent.
Learned Counsel appearing for the accused-petitioner submittedthat as the Magistrate did not take the view that these were articlesregarding which an offence had been committed lie had no poucr to doanything else except to return them to the person from whom theyhad been seized. It would appear that these nets and poles had beentaken by the police from the custody of one Lucille Ammali who howeverstated that they had been left with her three days before b}‘ the accused-petitioner. Counsel for the accused-petitioner relied on the case ofPunchinona v. IJ inniappukamy 1 and the case of K. Piyadasa v. U. M.Punchi Banda 2. In these cases it has been laid down that the Magistratehas no power to deliver articles taken from the possession of one personto any other person on the ground that he and not the former possessoris entitled to possession. In the case of G. V. Sagalhapala v. J. K.Thambiraiah3, it was held that while, as a rule, property should bodelivered to the person in whose possession it was at the time of seizureby the police, it is open to a Magistrate to order it to be delivered to someother person where there were special circumstances. This decision hasbeen followed in the case of ]V. Balagalle v. K. Somaratne 4.1 am in
agreement with the view that it is open to a Magistrate, where specialcircumstances exist, to order property to be delivered to a person otherthan the person from whose possession it was seized.
In this case, on Sth April, 19GS, when the Magistrate held an inquiry,the acoi.sed-petitioner, who had made a claim orally to the fishing netsand poles, was not present. The virtual complainant-respondent waspresent. Ifc gave evidence on oath and stated that he was the owner of■ these nets and poles. At the trial, though the accused-petitioner wasacquitted, the learned Magistrate who tried the ease had not disbelievedthe complainant’s evidence that he was the owner of the nets and polesbut he was not satisfied with the identification of them. The accused-petitioner appeared not to be pursuing his claim in view of his ubscncofrom thf inquiry.
In thf case of Punchinona v. TIinniappukamy (supra) the mainground for the decision i3 that section 419 of the Criminal l’roccduroCode 13 not a provision which confers jurisdiction to decide claims to
i (1060) GO N. L. n: 513.3 (1069) 62 N. L. ft. 307.
(1064) 67 A'. L. Ii. 91.
(1067) 70 N. L. ft. 332.
Gunasckcra v. Percra
possession. On Sth April, 1‘JGS, when the inquiry was held it can hardlybe said that there were disputed claims to possession as the accused-petition :r by his non-attendance was in cfTcct not prosecuting the oralclaim which lie had made on the earlier date.
A petitioner who makes an application to have an order of this natureset aside in revision must make out a strong ease. The order of thelearned Magistrate was, in my view, made within jurisdiction and,having regard to the facts and otiicr matters before the learned Magistrateat the time it was made, I am not disposed, in any event, to interferewith his order by way of revision.
The accused-petitioner has submitted that lie had misheard the datoof inquiry as Sth May, 190S. Jn liis petition he lias slated that anapplication for revision to this Court was filed on Dili May, 19liS, theday after he discovered that the inquiry had not been fixed for Sth May,iOGS, but for Sth April, 19liS. That application had been withdrawn byCounsel with liberty to file a fresh application later. 1 have sent forand examined the papers filed bj- the accused-petitioner on 9th May,19dS. and f find that in those papers he has not set out the fact that homade a mistake in regard to the date of inquiry. The assertion of amistake was made for the first time in the papers filed in the presentapplication on 2Gth June, 19CS. To put it at the lowest the petitionerhas not set out the fact of mistake at, the earliest opportunity that hehed. Moreover, botii in his petition as well as in the argument on hisbehalf in Court reliance was placed primarily on the fact that the orderof chc learned Magistrate was made without jurisdiction and/or wasinro.rect.
I am of the view that the accused-petitioner has failed to make ont aease for the intervention of this Court by the exercise oi the ox tra-oidinarypowers of rev ision. The application is accordingly dismissed.
J. THIRUNAYAGAM, Petitioner, and INSPECTOR OF POLICE, JAFFNA, and another, Respo