Manis Appu v. Ratwatte
1963Present : Herat, J.A. MANIS APPU, Petitioner, and S. L. RATWATTE, RespondentS. C. 112/63—Application in Revision in M. C. Tissamaharama, 39,407
Disposal of property regarding which an offence appears to have been committed—
Scope of S8. 357 (1) and 413 (I) of Criminal Procedure Code
In a prosecution for robbery of the key of a Dewale, the accused wereacquitted. The Magistrate was satisfied, however, that the offence had beencommitted by some unknown persons. He therefore ordered the key, whichwas a production in the case and which had been found by the Police in thepossession of the present petitioner who was not one of the accused, to berestored to its true owner. In the present application in revision, the petitionerclaimed for himself the custody of the key and sought to have the order of theMagistrate set aside.
Held, (i) that the petitioner, although he was not a party to the criminalproceedings, was entitled to move in revision under section 357 (1) of theCriminal Procedure Code.
(ii) that the order of the Magistrate in respect of the key was warranted bythe provisions of section 413 (1) of the Criminal Procedure Code.
HERAT, J.—Mania Appu v. RcUzOatte
Application to revise an order of the Magistrate’s Court,Tissamaharama.
Colvin R. de Silva, with C. D. S. Siriwardene, for Petitioner.
H. W. Jayewardene, Q.C., with C. R. Ghmaratne and L. C. Seneviratne,for Respondent.
Cur. adv. wit.
September 20, 1963. Herat, J.—
This is an application by one Adikaranage Manis Appu the petitioner,in revision to revise an order made by the learned Magistrate of Tissa-maharama in Magistrate’s Court, Tissamaharama case No. 39,407 underSection 413 (1) of the Criminal Procedure Code, Chapter 20. ..The peti-tioner claims to be the Maha Kapurala of the Maha De wale at Kataragamaand the respondent to this petition is S. L. Ratwatte, Basnayake Nilameof the Ruhuhu Maha Kataragama Dewale. The circumstances outof which the present application arises are as follows :—It appearsthat the key of the Maha Dewale, that is the main Dewale as distinctfrom the Thevaniamma Dewale and the Valliamma Dewale, had beengiven by the respondent Basnayake Nilame to one Davith Appuhamy,who was the Gaboda Rala or Store-keeper of the Maha Dewale. Onthe morning of the 23rd of May, 1962, Davith Appuhamy was on hisway to the main Dewale with this key, when, it is alleged, he was setupon by certain persons and the key was forcibly taken from him.Subsequently the Police produced five suspects before the Magistrate ofTissamaharama. The third suspect was the present petitioner ManisAppu. The second suspect and third suspect were discharged ; but aprosecution was launched in case No. 39,407 of the Magistrate’s Court,Tissamaharama, against the first suspect, fourth suspect and the fifthsuspect who became the first, second and third accused respectively inthat case. The first accused in that case was, in fact, the son of thepresent petitioner Manis Appu. The first accused, son of Manis Appu,was charged inter alia with robbery of the key from Davith Appuhamy.At the trial in the said case M. C. 39,407, after the evidence for the pro-secution was led, the learned Magistrate, without calling for a defence,acquitted the accused, because he was not satisfied with the evidenceled for the prosecution as regards the identity of the persons whocommitted the offences referred to in the charge. The learned Magistrate,in his order, however, states that he is satisfied that the incident inquestion took place. I have carefully read the evidence led in the casebefore the learned Magistrate and have also carefully read the order of thelearned Magistrate and I am satisfied in my own mind that the learnedMagistrate was fully satisfied that, at best, a prima facie case had beenestablished to the effect that on the 23rd May, 1962, Davith Appuhamyhad been set upon by certain persons and the key of the Maha Dewalerobbed from him. It was only the identity of the robber or robbers andthe persons who took part in the incident which could not be established.
HERAT, J.—Manis Appu v. Batwattc
During the pendency of the inquiries preceding the institution of the saidcase M. C. 39,407, the Police took the key of the Maha Dewale from the-petitioner Manis Appu and it was produced as one of the productions in thesaid case. As to how Manis Appu came by the key it is Manis Appu’sposition that the key was always with him and in his custody. On theother hand, it was the contention on behalf of the prosecution in M. C.Tissamaharama'case No. 39407 that it was this identical key which hadbeen forcibly taken from David Appuhamy on 23rd May, 1962.
At the conclusion of the case M. C. Tissamaharama No. 39,407 thelearned Magistrate made an order under Section 413 (l)of the CriminalProcedure Code (Chapter 20) giving the key into the custody of therespondent to the present application, namely, the Basnayake Nilame.Section 413 (l) of the Criminal Procedure Code is as follows :—“ Whenan inquiry or trial in any criminal Court is concluded, the Court maymake such order as it is fit for the disposal of any document, or otherproperty produced before it regarding which any offence appears to havebeen committed, or which has been used for the commission of anyoffence ”. The key is now with the respondent Basnayake Nilame.It is this order of the learned Magistrate giving the key to the BasnayakeNilame, which the petitioner in this application prays this Court to setaside by way of revision. I am of opinion that, although the petitionerwas not a party to the proceedings in which the order under Section413 (1) was made, nevertheless, section 357 (1) of the Criminal ProcedureCode is wide enough to enable him to bring the matter before the noticeof this Court and to move this Court to exercise its revisionary powersif proper grounds exist. But in the circumstances of this case, I donot think that the extraordinary powers of revision possessed by thisCourt should be exercised in the petitioner’s favour in the presentapplication, for, I think the learned Magistrate acted legally and correctly,if I may say so, with the greatest humility, in making the order whichhe made. The language of Section 413 (1) is to the effect that a Courtcan make an order disposing of a production as the Court thinks fitwhen the production is one “ regarding which any offence appears tohave been committed ”. Por the reasons I have already given it isamply clear on a perusal of the learned Magistrate’s order that it appearedto him that the robbery of the key had in fact taken place, althoughthe evidence was insufficient to identify the robber. Therefore the keywas a production in the case and such a production regarding which anoffence appeared to have been committed. In the circumstances theMagistrate could correctly exercise his discretion and dispose of the keyas he thought fit. The Basnayake Nilame under the law is vested withthe temporalities of the Dewale—vide Section 20 of Chapter 318—andI do not think that the learned Magistrate has exercised his discretionin giving the key to the respondent in any other way than that whichis in the best interests of the great religious institution one is concernedwith in this case. The application is refused.
A. MANIS APPU, Petitioner, and S. L. RATWATTE, Respondent