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Present: Jayewardene A.J.
MARTHELIS APPU v. ANTONY FERNANDO.
283^-P. C. Chilaw, 29,447.
Compensation ]or groundless charge—Arrest by peace, officer—Evidenceof complainantuncontradicted—CriminalProcedure Code,
s. 203 C (I).
There must be an arrest by a peace officer before an orderfor compensation is made by a Police Magistrate under sect ion233 c (1) of the Criminal Procedure Code.
The mere fact that the Magistrate disbelieved the evidence forthe prosecution is not sufficient to justify an order for compensation.The complainant must be contradicted by evidence given on oath.
^^PPEAL from an order of the Police Magistrate of Chilaw.
Rajapakse, for complainant, appellant.
June 4, 1930. Jaykwardexe A.J.—
The complainant charged the accused with the theft of fifteencoconuts. After trial the learned Police Magistrate, acquitted theaccused and ordered the complainant to pay Rs. 20 as compensationto the accused..
The complainant gave evidence stating that at about 3 a.m.,Stephen, Siman Appu, and he were going their rounds when theyheard the sound of coconuts being put into a bag. They approachedin three different directions. Stephen said ‘‘ Who’s that ” and SimanAppu cried out “ Thief is running away.” The thief started to runand Siman and Stephen ran after him. They could not catchhim, but said that Antho Lokka, meaning the accused, ran away.Prompt information was given to the headman. In cross-examination the complainant denied that the accused had told himnot to go past his house as he had grown-up daughter’s. Siman andStephen were both called and corroborated the complainant. Theysaid that they identified the accused and chased Kim up to hiscompound, which was close by. Siman said that accused jumpedat him with a knife and that he struck accused with a club on hislegs. The police headman had examined the trees and found that
J AYE WAR -DENS A.J.
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nutg had been plucked from three trees. The Magistrate did notcall upon the accused for his defence, and the evidence of thecomplainant – and his witnesses stands uncontradicted. It iscontended on behalf of the appellant that he should not have beencalled upon to pay compensation in this case.
The mere fact that the Magistrate disbelieved the evidence forthe prosecution is not enough to justify an order awarding compen-sation under section 253 c of the Criminal Procedure Code. Theevidence of the complainant must be contradicted by evidencegiven on oath. In the unreported cases S. C. No. 541, P. G.Kalutara, No. 31,643, S. C. M. Sept. 20, 1929, Lyall Grant J. held thatevidence must be led contradicting the evidence for the prosecution,following * S. C. No. 337, P. C. Kalutara No. 30,144, S. G. M. ofAugust 28, 1929, also unreported. These cases followed, the principleunderlying the decisions under section 54 of the Police Ordinance,
* Maartensz .T.—
The accused in thin ease was charged with and acquitted of the offence ofstealing a bicycle, and the complainant was ordered to pay Bs. 25 as compen-sation to the accused under section 253o (1) of the Criminal Procedure Code.The complainant appeals from that order.
It is contended that as the accused was acquitted before the defencewas called on, there is nothing on the record to show that there were nosufficient grounds for causing, his arrest.
I am constrained to allow the appeal in view of the authorities cited insupport of the contention. In the cases/cited, the appellants were fined undersection 51 of the Police Ordinance, No. 16 of 1865, on the ground that therewas not sufficient ground for making the charge. In the case of Labuna v.Sutoada 1 Pereira <T. held that as the evidence is all one way and the accusednot having contradicted on oath …the charge against them the complainantcould not be fined. He further held that the fact that the Magistrate wasunable to place reliance on the evidence called is not a sufficient ground forinflicting a fine under section 54 for bringing a false and frivolous charge.He' followed the decision of Ennis J. in the case of Rajonis e. Peter2 inwhich Ennis J. came to the same conclusion.
Section 51, which has now been repealed, runs as follows:—I quote thematerial words “ In every case in which it shall appear to the Magistrate by .whom the case is heard that there were no sufficient grounds for making thecharge such Magistrate shall have the power to award a fine not exceeding £5.Section 253d (1) enacts that whenever any person causes a peace officer to'arrest another person, if it appears to. the Magistrate who takes cognizance of. the case, that there is no sufficient ground for causing such arrest, he may awardsuch compensation not exceeding twenty-five rupees to be paid by the personso causing the arrest to the person so arrested for his loss of time and expensesin the matter as the Magistrate thinks fit."
– The ratio decidendi in the cases cited apply to the section of the Code underwhich the appellant was ordered to 'pay compensation. The evidence in thiscase being uncontradicted there is nothing on the face of the proceedings to show .that the evidence was false. I am unable to agree with the Magistrate thatthere were no sufficient grounds, for causing the arrest of the accused.
I accordingly set aside the order and sentence appealed from.
(1914) 4 C. A. C. 67.
(1913) 1 (Wijewardcne Reports) 4S.
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where words similar to section 253o occur. Pereira J. observedin Labuna v. Suwada 1: “ The evidence is all one way, the accusedhave not contradicted on oath the charge made against them bythe appellant." The fact that the Magistrate was unable to placereliance on the evidence called is not a sufficient ground for. con-demning the complainant and pay compensation (Bajonis v. Peter 2).
Further, there must be an arrest by a peace officer before anaward of compensation is made under section 253 c, and the Magis-trate must be satisfied that there was no sufficient ground forcausing such arrest. In the present case there was no arrestaccording to the record. The headman and Sub-Inspector havegiven evidence, but neither of them says that the accused wasarrested. On the contrary the proceedings show that the accusedappeared on summons.
The appeal is allowed, and the order condemning the complainantto pay Rs. 20.as compensation to the accused is quashed.
MARTHELIS APPU v. ANTONY FERNANDO