027-NLR-NLR-V-33-BANDA-v.-DALPADAO.pdf
DRXEBBHG J.—Banda V. Dalpadado.
113
1831
Present: Drieberg J.BANDA v. DALPADADO.
e65-^-P. C. Colombo, 88,972.
Appeal—Order of discharge—Complainant, appeals with sanction of Attorney-General—Sanction unnecessary—Time limit for appeal.
Where a complainant has **a right of appeal without the sanction ofthe Attorney-General he cannot, by obtaining the sanction, file tbeappeal within the longer period allowed by section 338 (2) of the CriminalProcedure Code.
^ PPEAL from an acquittal by the Police Magistrate of Colombo.
Rajapakse, for the accused, respondent, raised a preliminary objection.
*
The appeal is from an order discharging the accused. Such order ismade under section 191 of the Criminal Procedure Code. An appeallies as of right to the complainant within ten days. (Suppiah v. BandaSilva v. Rahiman 2.) No sanction was necessary. The sanction referredto in section 338 (2) both before and alter the amendment is the necessarysanction and is referrable to section 336. The Attorney-General cannotby sanctioning, ah appeal extend the ordinary appealable period.
Pulle, C.C., for the complainant, appellant.—Although the word usedby the Magistrate is “ discharge ”, the order is tantamount to an acquittal.(Gabriel v. Soysa*.) An order of discharge after accused has pleaded is anacquittal and the Attorney-General may appeal within 28 days. SeeEnnis J.’s dissenting judgment in Seneviratne v. Lenohamy *. Very widepowers are given under .the new Ordinance. See section 3 of OrdinanceNo. 19 of 1930 which has amended section 338 (2). In any case SupremeCourt can act by way of revision.
Rajapakse, in reply.—Section 3 of Ordinance No. 19 of 1930 applieswhere the Attorney-General is the appellant. Here the appellant is thePolice Sergeant. The sanction referred to there is also the neeessarijsanction.
June 29, 1931. Drieberg J.—
The complainant, a Police Sergeant, appeals with the sanction of theSolicitor-General from a judgment by the Police Magistrate dischargingthe accused in a case which was summarily triable. The order was madeUnder, section 191 of; the Criminal Procedure Code and is one from whichan appeal lies without the sanction of the Attorney-General (Silva v.Rahiman 5). The appeal was not filed within ten days but within thelonger period allowed for appeal with the sanction of the Attorney-General.
' 3 <7. W. n. 127.
* 26 N. L. R. 463.
(1924) 26 S. L. R. 463.
3 31' N. L. R. 314.• 20 N. L. R, 44.
114 MACDONELL G.J.—Sttb-Inspector of Police. Tangalla v. Dharmabandu.
Mr. Bajapakse contends that where a complainant has a right of appealwithout the sanction of the Attorney-General, he cannot by obtainingthe sanction which is not necessary file an appeal out of time. In myopinion this contention is right. If the complainant had not exercisedhis right of appealing within ten days it is open to the Attorney-General,though he was not the complainant in the case, to himself appeal, sucha course being now possible under section 3 of Ordinance No. 19 of1930.
The appeal is dismissed^
Appeal dixmixped.