009-NLR-NLR-V-61-S.-CHITHRAVELU-Appellant-and-S.-I.-POLICE-KANTALAI-Respondent.pdf
Chitravehi v. S. I. Police, K.antaiai
1958
Present: Weerasooriya, J.S. CHITRAVELU, Appellant, and S. L POLICE, KANT AT, AT,
Respondent
jS. G. 226—M. C. Trincomalee, 18,856
Criminal trespass—Ingredients of offence—“ Occupation ”—Distinction between-occupation and possession—Penal Code, ss. 427, 434.
Tn dealing with a charge of criminal trespass, it is necessary for the Court tobear in nriinH the distinction between occupation and possession.
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WEBBASOOBIYA, J.—Chitravelu v. S. I. Police, lEantalai
-Appeal ftom a judgment of the Magistrate’s Court, Trincomalee.
S, JRajaratnam, for the aeeused- appellant.
H. Abeysuriya, Crown Counsel, for the Attorney-General.
July 3, 1958. Weerasoobtya., J.
The appellant in this ease was convicted of the offence of house trespasspunishable under section 434 of the Penal Code and sentenced to 3 monthsrigorous imprisonment.
The amended charge on -which the case went to trial reads as follow; :“ On 27.3.57 you did commit house trespass by entering intohouse No. 637 Unit 18 in the custody of H. Sapu Aratchi, ColonizationOfficer, Unit 18, Kantalai, with intent to cause annoyance to the saidH. Sapu Aratchi and thereby committed an offence punishable undersection 434 of the Penal Code.”
It will be observed that in the definition of criminal trespass in section■427 of the Penal Code, a necessary ingredient of the offence is that theproperty in respect of which the entry has been made is in the occupationof another, but in the charge as framed there is no allegation that houseNo. 637 was in the occupation of the aforesaid H. Sapu Aratchi (who,according to the evidence, was the Colonization Officer in whose charge thehouse was at the relevant time). Furthermore, the prosecution evidenceitself would appear to indicate that, far from the accused having enteredthis house on the 27th March, 1957, he had come into occupation of itnearly a year before.
In dealing with a charge of criminal trespass, it is necessary for the■Court to bear in mind the distinction between occupation and possessionas pointed out by the Privy Council in Kingv. Selvcmayagam,l. This thelearned Magistrate seems to have failed to do. His finding is that “ onthe evidence there is no doubt at all that the Colonization Officer was inlawful possession of the colony cottage and I am of opinion that thecharge against the accused has been substantiated and proved beyondreasonable doubt Not only has he misdirected himself as to theparticular ingredient of the offence of criminal trespass to which I havereferred earlier, but there is also no finding by him that as a result of whatthe accused did on the 27th March, 1957, annoyance was caused to theColonization Officer as alleged in the charge.
I set aside the conviction of the accused and the sentence passed on himand acquit him.
s (1950) 51 N. L. JS. 470 at 474-
Appeal allowed.
SANSONI, J —Mendis.v. Rajas egaram,
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Present: Sansoni, J., and T. S. Fernando, J.
T.D. MENDIS, Petitioner, and V. RAJASEGARAjVI, Respondent
S. C. 354—Application to have the plaintiff’s appeal to the Privy Council
dismissed for non-prosecution
Privy Council—Dismissal of appeal for non-prosecution—AppeRctc Procedure
{Privy Council) Order, 1921, Rule 11—Appeals {Privy Council) Ordinance
{C<tp. 85), Schedule, Ride 25.
On February 2, 1958, plaintiff obtained final leave to appeal to the PrivyCouncil and elected to print the record of the case in Ceylon. He failed, how-ever, to comply with the requirements of rule 11 of the Appellate Procedure(Privy Council) Order, 1921. Nor did he apply to enlarge the time prescribedby rule 11. Further, he did not pay the fees called for by the printers.
On September 13, 1958, the defendant made the present application for the-dismissal of the appeal for non-prosecution.
Reid, that the appeal fell within rule 25 of the Schedule to the Appeals-(Privy Council) Ordinance and should be dismissed for non-prosecution.
A
-^APPLICATION to Lave an appeal to the Privy Council dismissed fornon-prosecution.
W. Jayetoardene, Q- G., with A. S. Vanigasooriyar and P. Ranasinghe,for the Defendant-Petitioner.
S. J. V. Ohelvanayakam, Q. G., with S. Sharvananda, for the Plaintiff-Respondent.
Cur. adv. wilt-
November 20, 1958. Sansoot, J.—
This is an application by the defendant to have the plaintiff’s appealto the Privy Council dismissed for non-prosecution. Pinal leave to appealwas granted on 13th February 1958 and the plaintiff elected to print therecord in Ceylon. He should therefore have delivered the prints to the-Registrar for examination and certification by 13th April as required byrule 11 of the Appellate Procedure (Privy Council) Order, 1921. He did.not do so, nor did he apply to enlarge the time prescribed by rule 11.Certified copies of the record were forwarded to the printers on 24thJuly and the printers requested the plaintiff’s proctor to pay a sum ofRs. 12,000 being the cost of printing. Although that request was madein July, the payment has not been made yet.
This application by the defendant to have the appeal dismissed wasfiled on 13th September. Notice was issued on the plaintiff who filedobjections on 16th October. The only explanation offered regarding
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Soma&underam Sarma v. Ki-ishnapUJai
tiie non-payment of the printers’ Charges is that this application is pen-ding. No explanation has been offered regarding the failure to applyfor an extension of the time prescribed by rule 11. The prayer to thestatement of objections asks for an extension of six months to deliver theprints of the record to the Registrar.
The matters 1 have set out show plainly that the plaintiff has failedto exercise due diligence in taking all necessary steps for the purposeof procuring the dispatch of the record to England, and the case falls-within mile 25 of the Schedule to the Appeals (Privy Council) Ordinance,Cap. 85. Not only did the plaintiff fail to apply -within the period oftwo months prescribed by rule 11 already referred to, but he waited afurther six months thereafter to make an application for an extensionof time, and he seems to have been goaded into activity only by thefiling of the present application by the defendant. Nearly two monthshave elapsed since the printers called for their fees, but uo paymenthad been made at the time the present application was filed. If theplaintiff chooses to act in this casual manner he runs the risk of havinghis appeal dismissed for non-prosecution, and that is the order I wouldmake on this application.
declare the plaintiff’s appeal to stand dismissed for non-prosecution.The defendant is entitled to the costs of this application and the costs■already incurred by b-im in connection with the plaintiff’s appeal to thePrivy Council.
T. S. Peenajtdo, J.—I agree.
Application allowed.