046-NLR-NLR-V-61-D.-JAYASURIYA-Appellant-and-H.-WARNAKULASURIYA-Respondent.pdf
Jayasuriya v. WamaJculasuriya
183
1953
Present: EL N. G. Fernando, J.
JAYASURIYA, Appellant, and H. WARNAKTILASURIYA,
Respondent
S. C. 1,174., with Application 92—M. G. TangaUa, 72
Criminal Procedure Code—Seizure by police officer of property alleged to have beenstolen—Power of Magistrate to order delivery of each property to a person—Sections 413, 419.
Section 419 of the Criminal Procedure Code does not afford a means ofsettling civil disputes. It cannot he utilised by a complainantin order toobtain an order of possession from a Magistrate of any artiole seized from the
190H- ->f> Cl. jERWANDO, J.—ja/yasuviyn v. Wcu'nahidasuriya
possession of another as being stolen property if the other person denies thetheft and claims the property as his own. In such a ease section 413 is theonly provision which can be invoked, and it may be invoked only after theconclusion of proceedings instituted under section 1-4-8.-
A
XjLPPEAL, with application in revision, from a judgment- of theMagistrate’s Court, Tangalla.
F. Wijemanne, for the petitioner and appellant.
E. B. Sathrukulasinghe, for the respondent.
Cur..adv. vult.
March. 25, 1958. H. N. G. Fernando, J.—
The proceedings before the Magistrate commenced with an ** intimationto Court ” of an alleged complaint by the present respondent to theeffect that the appellant had removed a fishing boat from the custody ofthe respondent on 22nd May 1957 and taken the boat to the appellant’sland. The "intimation” further stated that there was a disputebetween the parties claiming ownership of the boat and, *' as the Policeapprehended a breach of the peace the boat was kept in the custody of theVillage Headman ”, and concluded with r request for an order regardingthe disposal of the boat. The Magistrate thereafter held a long inquiryat the conclusion of which he held that the boat which originally be-longed to the present appellant had been handed over to Wamakulasuriyathe respondent on an agreement and that Wamakulasuriya was entitledto the possession and use of the boat. On this ground the learnedMagistrate held that the boat had been unlawfully removed fromWamakulasuriya’s custody and made order that the boat be deliveredto him.
The order purports to have been made under section 419 (1) of theCriminal Procedure Code which states inter alia that ** The seizure by
any police officer of propertyalleged or suspected to have been
stolenshall be forthwith reported to a Magistrate who shall make
such order as he thinks fit respecting the delivery of such property to theperson entitled to the possession thereof”
The principal argument for the appellant has been that the Magistratehas no jurisdiction to order the delivery of the boat to Wamakulasuriyaexcept after the conclusion of proceedings duly instituted in one of themodes prescribed in section 148 of the Criminal Procedure Code.
H. N. G. FERNANDO, J.—Jayaata'iya «. Warruikulasuriyn
191
It is interesting to compare the circumstances of the case of MartinSilva v. Kanapathyp Mai l. There two boutique keepers had bothcomplained to the Police on the same day of the loss of cash from theirrespective adjoining boutiques. The Inspector of Police discovered cashto the value of Rs. 407 in A’s boutique and said that B claimed thatmoney. The money was accordingly brought to Court and retainedthere. Thereafter the Magistrate recorded that A’s proctor moved forthe delivery of the cash to A and that B’s proctor stated that the moneybelonged to his client B. The Magistrate then fixed the respectiveclaims of both claimants for inquiry. At the conclusion of the inquirythe Magistrate said that the inquiry had been into a complaint by B oftheft of property belonging to him and conclude d on the evidence thatthe cash was the property of B and had been stolen from him althoughthe evidence was insufficient to sustain a charge of theft against A. Onthis ground he ordered the cash to be delivered to B. Abrahams O.J.makes it clear in his judgment that the Magistrate had no jurisdiction tomake any order for the restoration of the property to B unless and untilhe was satisfied that an offence had been committed in respect of thatproperty and further that he could not have conducted an inquiry intoany such offence unless there was before him a proper complaint undersection 148 of the Code.
The learned Chief Justice observed that the only provision of lawunder which the order regarding the property could possibly have beenmade was section 418 of the Criminal Procedure Code, that is to say atthe conclusion of an inquiry or trial held after proceedings had been dulyinstituted under section 148. It would seem at first sight that this viewignored the existence of section 419 which also enables a Magistrate tomake an order for the disposal of property seized and brought to Court.But I am satisfied upon a consideration of that section that it wouldhave no application in the circumstances of the case with whichAbrahams C.J. was dealing. Section 419 contains no reference what-ever to the necessity for any report or complaint under section 148, norcan it be said that even by implication the jurisdiction to make an orderfor delivery of seized property can only be exercised if such a complaintor report has been made. Indeed there may be many cases where, whenproperty is seized by the Police on grounds specified in the section, someperson can come forward and obtain an order for possession in his favourwithout there being any inquiry by the Magistrate as to the commissionof any offence. But if A is actually in possession of a chattel and it isseized and brought to Court because B claims 'that it was stolen fromhim by A, a Magistrate who inquires into the rival claims of A and Bwithout taking proceedings into the allegation of theft would be decidinga purely civil dispute. If the Magistrate’s order in the present case wereallowed to stand Wamakulasuriya would, through the intervention ofthe Magistrate, be recovering possession of the boat from the appellantalthough he has neither instituted a prosecution for theft against theappellant nor instituted proceedings in a civil court for the purpose. Inmy opinion section 419 was not intended to afford a means of settlingcivil disputes in this manner.
1 (1930) Id O. L. W. d1,
192
H- N. G. J?'JfiRNA25DO, J*—Jayasuriya v. Warnahidasuriya
I would hold that section 419 cannot be utilised by a “ complainant ”in order to obtain an order of possession from a Magistrate of any articleseized from the possession of another as being stolen property if the otherperson denies the theft and claims the property as his own, In such acase section 413 is the only provision which can be invoked, and it maybe invoked only if, as this court has previously held, proceedings havebeen instituted in respect of the alleged offence of theft.
It is unnecessary for mf to decide in the present case whether section419 would permit any “interim order for possession to be mad – whileinquiry or trial is pending I accordingly set aside the order appealedfrom and direct that the boat be returned to the possession of theappellant.
Order set aside.