BASNAYAKE J.—Fernando v. Inspector of Police, Panadure.
1948Present: Basnayake J.
FERNANDO, Appellant, and INSPECTOR OF POLICE,PANADURE, Respondent.
S. C. 937—M.C. Panadure, 47,191.
Criminal Procedure Code—Bond to be of good behaviour—Without proceeding toconviction— Meaning—Section 325.
Conviction within the meaning of section 325 of the Criminal ProcedureCode means verdict of guilty recorded under section 188 or 190.
-A.PPEAL from a judgment of the Magistrate, Panadure.
H. V. Perera, K.O., with S. R. Wijayalilake, for the accused,appellant.
Boyd Jayasuriya, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
March 24, 1948. Basnayake J.—
The accused-appellant who was charged with the offence of causinggrievous hurt to one P. Simon Salgado was ordered by the learnedMagistrate under section 325 of the Criminal Procedure Code to enterinto a bond in a sum of Rs. 200 with one surety to be of goodbehaviour for 2 years and to pay a sum of Rs. 75 as compensationto the injured man.
It has been held in a number of cases, and it may now be takenas settled, that there is no right of appeal from an order undersection 325 of the Criminal Procedure Code. This appeal is thereforerejected. Nevertheless I have examined the appellant’s case undersection 357 of the. Criminal Procedure Code in view of his applicationin that behalf.
The case for the prosecution is that on May 28, 1947, at about
at night after the doors of the injured man’s house had beenclosed he heard someone outside calling out and asking for ink. Heopened the front door and went out followed by his wife. He sawthe appellant in the compound with a club in his hand. As soon ashe saw the injured man the appellant rushed at him and struck himtwo blows, one on his arm and the other on his shoulder. Beforefurther blows were struck the injured man managed to get into hishouse and close the door. Hia story is corroborated by his wife who
BASNAYAKE J.—LarUis u. Musafer.
also identified the appellant by the light of the lamp that was burningin the verandah. The appellant in his evidence denied the chargeand stated that he was in his boutique that night. He called nowitnesses in support. The learned Magistrate who heard and sawthe witnesses does not appear to have any doubt as to the truth ofthe prosecution case. I see no sufficient ground for interfering withhis finding.
I observe that the learned Magistrate has in this case recorded thefinding against the appellant in these terms : “I find the accusedguilty ”. I am inclined to think that such a finding is not in keepingwith the object of section 325 of the* Criminal Procedure Code whichexpressly provides that “ the Court may, without proceeding toconviction”. In King v. Ratnam1 Garvin J. expressed the view thatthose words must be construed as meaning “ without proceeding torecord a conviction”. In the case of Oaten v. Auty 2 Avory J. con-strued the corresponding English provision in the same sense. Aconviction in this context means a verdict of guilty recorded undereither section 188 or 190 of the Criminal Procedure Code. I there-fore delete the offending words and substitute therefor the words “ Ifind the charge proved ”. Subject to this variation the order of thelearned Magistrate is affirmed.