Attorney-General v. Alwisappu
1954-Present. Gunasekara J.ATTORNEY-GENE BAR, Appellant, and T. H. AJLWISAPPU,Respondent
S. C. 1,343—rM. O. Oalle, 6,135
Land Development Ordinance (Cap. 320)—-Prosecution thereunder—liii/hl oj forestofficer to institute it—Seclions 3-6, 168 (2)—Criminal Procedure Code. . 148 (!)(6).
There in nothing in the Land Development Ordinance to prevent a rangeforest officer from availing himself of the provision of section 148 (1) (4) of theCriminal Procedure Code in order to institute a prosecution for an offencepunishable under that Ordinance.
OUNASEKARA J.—Attorney-General v. Alwisappu256-
Appeal from a judgment of the Magistrate’s Court, Galle.
E. Keuneman, Crown Counsel, for the Attorney-General.
No appearance for the accused respondent.
Cur. adv. vult.
August 27, 1954. Gunasbkara J.—
The Attorney-General appeals against an order made by the magis-trate of Galle discharging the respondent who was charged before himwith an offence punishable under section 168 (2) of the Land DevelopmentOrdinance (Cap'. 320).
A written report to the effect that the respondent had committed suchan offence on the 22nd May, 1952, was made to the magistrate by a rangeforest officer on the 29th July, 1952. It purported to be made in termsof section 148 (1) (b) of the Criminal Procedure Code, and the magistrateordered the issue of a summons to the respondent. The summons wasissued on the 12th August and served on the respondent, and he appearedin obedience to it on the 21st August. On that day the statement of theparticulars of the offence contained in the summons was read to therespondent as the charge, and he pleaded not guilty. The trial waspostponed to the 5th November. The respondent failed to appear onthat day and a warrant was issued for his arrest. He surrendered to thecourt on the 10th December and the magistrate ordered that the caseshould be “ called ” on the 18th December.
In the meantime, on the 25th October, 1952, the range forest officerhad submitted to the magistrate a second report, which too purportedto be a report in terms of section 148 (1) (b) of the Criminal ProcedureCode. He described it in a covering letter as an amended plaint. Onthe 18th Docember the respondent was again charged and he pleadednot guilty. The record of that day’s proceedings reads :
Accd : T. H. Alwisappu—pt.
Vide fresh plaint filed on 25.10.52.
Charged from Ss.
‘ I am not guilty ’
Trial for 12.3—Cite prosecution witnesses.
Warned to appear. ”
The summons from which the respondent was charged on this day couldonly have been the one that was issued on the 12tJi August, 1952, for noother summons had been issued.
When the caso was taken up for trial on the 12th March, 1953, a proctorappearing for the respondent submitted that a forest officer had no
GUNA8EKARA J.—Attorney-General v. Alwisappu
authority “ to take any proceedings under the Land DevelopmentOrdinance The learned magistrate heard argument on the quotation«o raised and made order discharging the respondent.
The Land Development Ordinance assigns to various officers variouspowers, functions and duties, but none of these relate to tho institution ofprosecutions. The ground on which the learned magistrate dischargedthe respondent is that “ under sections 3-6 of the Land DevelopmentOrdinance only such officers as are contemplated therein can instituteproceedings under the Land Development Ordinance ”, and a range forestofficor is not one of them. But the institution of a prosecution is not aproceeding under this ordinance. It is a proceeding under the CriminalProcedure Codo, even though the offence alleged is a contravention of aprovision of the Land Development Ordinance. The Criminal ProcedureCode, provides that proceedings in a magistrate’s court shall be institutedin one of the ways prescribed in section 148 (1) of that Code, and there isnothing in the Land Development Ordinance that qualifies this provision.The proceedings in the present case were instituted in the way prescribedby section 148 (1) (6) of the Code, namely by a written report being madeto the magistrate by a public officer to the effect that an offence hadbeen committed, which the magistrate’s court had jurisdiction to try.In my opinion, therefore, the order of discharge was wrongly made.
This circumstance however, cannot conclude the question whether theappeal should be allowed. The charge to which the respondent pleadedand in respect of which the order was -made was that on the 22nd May,1952 he did (in the words of the summons) “ break up for cultivationand oncroach (sic) about 2J acres and erect a building in the Crown landcalled the Kottawa-Kombola Reserve ” and that he thereby committedan offence punishable under section 168 (2). of the Land DevelopmentOrdinance. The allegation contained in what the range forest officerdescribed as an amended plaint was that the respondent committed anoffence punishable under section 168 of the Ordinance by doing cortainacts " after the mapping out survey of 1950 and thereafter ”, and not“on the 22nd May, 1952”, as alleged in the summons, and that what-he did was to “ clei r, break up for cultivation, cultivate, orecf a buildingor structure, fell or otherwise destroy trees standing, otherwise encroachon ” the crown land in question and that he was continuing “to do suchacts”. The prosecution mtde no application for amendment of thocharge, and there was no evidence before the magistrate upon which hecould base an order for amendment. But the filing of a fresh reporton tbe 25th October, 1952 (which alleged against the respondent a widerrange of activity ovor a longer period of time than was alleged in the chargeto which he had pleaded) indicates that the prosecution themselvesdesired that tho respondent should not be tried on that charge. Inthese circumstances I do not think that there is sufficient ground for■setting asido the order of discharge.
The appeal is dismissed.
ATTONEY -GENERAL, Appellant , and T. H. ALWISAPPU, Respondent
Attorney-General v. Alwisappu