BASNAYAKE J.—Bio Singho v. Joseph
1948Present: Basnayake J.
ELO SINGHO, Petitioner, and JOSEPH (Inspector of Police),
Application to re-list appeal in M. C. Horana, 2,397(S. C. 1,233/1947).
Appeal—Dismissal of appeal from Magistrate's Court—No appearance for appellant—Application to re-instate—Power of Supreme Court—Criminal ProcedureCode, Section 344 (2).
The Supreme Court has no power to re-instate a criminal appeal whichhas been dismissed in the absence of the appellant.
APPLICATION to re-list a criminal appeal.
H. A. Kottegoda, for the applicant.
Ananda Pereira, Crown Counsel, for the Attoiney-General.
March 15, 1948. Basnayaee J.—
This is an application for reinstatement of the appeal in M. C., Horana,Case No. 2,397, -which was dismissed by my brother Windham on December2, 1947. The decision of my brother is thus recorded in his formal order“ It is considered and adjudged that the judgment of the Magistrate’sCourt of Horana dated September 15, 1947, be and the same is herebyaffirmed and his appeal is dismissed.” It is not suggested that theorder is one made per incuriam nor does learned counsel rely on anyprovision of law or decision of this Court.
Section 344 (2) of the Criminal Procedure Code provides that if whenan appeal comes on for hearing the appellant does not appear to supporthis appeal the Court shall consider the appeal and may make such orderthereon as it may deem fit. It is not free in an appeal under the CriminalProcedure Code to do what it is authorised to do by the Civil ProcedureCode in appeals thereunder. In appeals under the latter Code the Court haspower in its discretion—Section 769—to dismiss an appeal if the appellantdoes not appear either by Counsel or in person. Express provision isalso made therein for the reinstatement, in certain circumstances, ofan appeal dismissed for non-appearance. The Criminal Procedure Codemakes no such provision for the reason that the Court is required toconsider every appeal regardless of whether the appellant is present ornot.
The reinstatement of an appeal carries with it the implication that theCourt will revise its decision. This Court has no power to revise its ownorder unless it be an order made per incuriam. Except in the case ofan order made per incuriam the reinstatement of an appeal in a criminalcase decided by it is therefore purposeless and cannot in my view beallowed.
The application is refused.