( 381 )
Present: Schneider J.
BABY NONA v. MOHIDEEN.
624—P. C. Colombo, 42,632.
jippeal—Complainant referred to civil remedy—Refusal to issue process—Criminal Procedure Code, s. 337.
Where a Magistrate referred a complaint to the police for reportand on receiving the report declined to issue process, referring thecomplainant to her civil remedy,—
Held, that complainant was not entitled to appeal without theprevious sanction of the Attorney-General.
^^PPEAL from an order of the Police Magistrate of Colombo
N. E. Weerasooria, for appellant.
Tisseveresinghe, for respondent.
^November 5,1928. Schneider J.—
In this case the complainant appears to have made a complaintto the Court, the only record of which is “ Baby Nona, affirmed,■50 years, married.”
This record is followed by the following entry :—
“ Police for report for 17th.”
“ Complainant Baby Nona.”
Police report received.”
“ I refer complainant to civil remedy.”
From this last order the complainant has preferred this appeal.In her petition of appeal she states that a Police Sergeant, held aninquiry and “ submitted a report stating in conclusion that it is a■civil case.”
. The appeal is not at the instance or with the written sanction ofthe Attorney-General. Objection has been raised to the hearingof the appeal upon the ground that the complainant has no right ofappeal. There can be no doubt, upon the facts mentioned by me,that the Police Court had refused to issue process. I would regardthe case therefore as one coming within section 337'of the CriminalProcedure Code,.and not as one falling under section 336 or 338 (1).of that Code.
( 382 , )
The remedies provided by section 337 have been the subject ofseveral decisions of this Court. I would mention the case of Ratna-weera v. Qoonesekera1 where the more important of the earlier casesare referred to. In that case and in the earlier cases it was indicatedthat the remedies mentioned under section 337 are alternative, andas regards the remedy by way of mandamus that it did not lie in acase where the Court had exercised jurisdiction. There is no doubtthat the present is a case where it had exercised jurisdiction, in thatsome evidence of the complainant must have been taken, and thePolice Magistrate appears to have adopted the report made to himby the police. It is to be regretted that he should delegate hisfunction to the police in that way. It is a practice which wascondemned in the case of Gunatvardene v. Samarakoon2 As thisappeal is not with the sanction of the Attorney-General, it is .wrongly constituted and must be dismissed. I, therefore, dismiss it.
There is an application by way of revision. This procedure hasbeen adopted because the appellant had not been certain that herappeal was rightly constituted. I set aside the order appealedfrom in the exercise of my powers of revision, because it seems to methat there has been a denial of justice, in that the complainant’splaint was not investigated. If the Magistrate had himself heardher evidence and, if necessary, any other evidence she may havedesired to produce and then made the order which he has actuallymade, I should not have interfered as I am now doing. Thecase is sent back for further hearing in due course.
' (1918) 5 C. W. B. 225.- (1820) 21 S'. f. B. 411.
BABY NONA v. MOHIDEEN