( 2«6 )Present : Pereira J.
NONIS v. TAMBL.
131—P. C. Ghilaio, 35,910.
An appeal lies from aii order purporting to be an order condemn-ing a complainant in Crown costs, so long as it is not an order dulymade under section 197 of the Criminal Procedure Code.
HIS was an appeal from an order condemning the complainantto pay Crown costs.
E. W. Jayewardene (with him E. T. de Silva), for the appellant.
Balasingham, for the respondent, raised the preliminary objectionthat an appeal didnotlie againstanorder to pay Crown costs.
[Pereira J.—Has itnotbeen held thatan appeal lies against such
an order if it was made, as in this case, without giving thecomplainant an opportunity of urging bis objections to such orderbeing made?] Yes (Silva v. Joana ’). But section 198 of theCriminal ProcedureCode does notpermit an appeal under any
The non-compliance with the povisions of section 197 is anirregularity, and the present appeal is on a point of law. Butsection, 198 does not make any distinction between appeals onpoints of law and on questions of fact, as section 335 does. Theappellant should have applied to this Coyrt by way of revision.
Jayawardene, fortheappellant.Ithas been held in several
cases that an appeal lies where the procedure laid down in section197 has not been complied with. The ord.er is ultra vires and isnot protected by section 198. Counsel referred to 2 Weerakoon(S. C. D.) 78 ; Koch 43.
Our. adv. wit.
February 20, 1914. Pereira J.—
This is an appeal from an order purporting to be an order for thepayment of Crown costs. Objection has been taken that no appeallie from such an order. No doubt if the order was in fact an orderunder section 197 of the Criminal Procedure Code no appeal wouldlies from such an order. No doubt if the order was in fact an orderan appeal would lie from it under the general right of appeal allowedby section 338. Now, as provided for by the section itself, a
1 (1905) 2 Bal. 60.
( 266 )
necessary preliminary to an order under section 197 is to record and. consider any objection which the complainant may urge againstthe making of the order. Without this preliminary, the order canhardly be 6aid to be an order under section 197. It would, indeed,be an order that is ultra vires; and as this Court has held in morethan one case (see 2 Weerakoons Reports 78, Koch*s Reports 43)an appeal would lie from such an order.
For these reasons an appeal lay from the order referred to, andfor the same reasons the order cannot be supported, and I set itaside.
NONIS v. TAMEL