115-NLR-NLR-V-40-DON-HARRY-v.-BETTO-HAMY.pdf
POYSER SJ’.J.—Don Harry v. Betto Hamj/.
431
[In Revision.]
1938Present: Poyser J.
DON HARRY v. BETTO HAMY.
P. C. Balapitiya, 32,739.
Criminal Procedure Code—Case compounded—Accused entitled to be acquitted—Criminal Procedure Code, s. 290.
Where a criminal case is compounded, the accused are entitled to beacquitted in terms of section 290 (5) of the Criminal Procedure Code.
^^PPEAL from an order of the Police Magistrate of Balapitiya.
L. A. Rajapakse (with him V. F. Gunaratne), for the petitioners.
R. L. Pereira, K.C. (with him A. P. de Zoysa), for the respondent.
Cur. adv. vult.
December 1, 1938. Poyser S.P.J.—
In this case the petitioners were charged in the Police Court withoffences under sections 434 and 486 of the Penal Code. Evidence wasled in support of the charges and summons was directed to be servedon the accused for them to appear jon March 19, 1938. In fact theyappeared before the Magistrate on March 26 and, when charged, pleadednot guilty. The trial was fixed for March 31. On that flay theMagistrate records as follows:—“This case is compounded. Thecomplainants will transfer their interests to this house and land as perdeed 28785 by C. A. Jayatillaka, Notary Public, for Rs. 250 to D. DarwisSoysa. The money to be paid on or before May 5, 1938. If not paidaccused will vacate the house. Call case on May 5, 1938 ”. On May 19,however, the matter again is brought before the Magistrate and he recordsthat “ there seems to have been some bona fide mistake regarding theterms on which this case was compounded ”. The Magistrate goes on tostate that in view of such disagreement he vacates the terms of settlementin this case and refixes it for hearing. On June- 7 the Proctor for thepetitioners takes the point that the Court has no power to vacate the
432
POYSER SJ?J.—Don Harry v. Betto Hamy.
order made on March 31 and after some discussion the Magistrate makesorder that the petitioners shall be ejected from the premises in regard towhich the dispute between the parties arose. Further orders are madeon June 28 and on September 6.
On behalf of the petitioners it is contended that when the case had beencompounded the accused should have been acquitted in accordancewith the provisions of section 290 (5) of the Criminal Procedure Code.
_ There is no doubt in my mind that this contention is sound. TheMagistrate appears to have misdirected himself by treating the case afterMarch 31 as a civil case. This he had no power to do. Once the casewas compounded the accused are deemed to be acquitted and it shouldhave been so recorded.
This Court has previously come to similar decisions, viz., in a casewhich is briefly reported at page LXXX. of Volume XIII. of the CeylonLaw Recorder and in the case P. C. Gampaha No. 37,488 (S. C. RevisionMinutes of April 7, 1936).
Acting in revision, therefore, I direct that the accused be formallyacquitted, such acquittal to take effect a§ from March 31, 1938. I alsoset aside all orders made by the Magistrate subsequent to that date.
Set aside.