078-NLR-NLR-V-61-G.-RETTIAR-and-others-Appellants-and-T.-PACKIAM-and-another-Respondents.pdf
WEERASOORIYA, J.—Jayasena v. S. I, Police, Ahmeemena
307
1917Present: T. S. Fernando, J.G. RETTIAR and others, Appellants, and T. PACKIAM and another
Respondents
8. C. 74-1-745, voifh Application 169—M. O. Jaffna, 5,862
Criminal Procedure Code—Section 413—“ Produced before the court ”—Order for,disposal of property regarding which an offence appears to have been committed.
At a non-summary inquiry into charges of house-breaking and theft, it wasshown that some of the stolen jewellery belonging to the 1st and 2nd claimantshad been melted down by two persons, to whom the burglar had given them, intobars of gold and sold to the 3rd to the 7th claimants. The bars of gold were inthe custody of court and had been itemised in a list attached to the report tocourt. During the non-summary inquiry the accused burglar died and thequestion of his committal for trial did not therefore arise. Thereafter the claimsmade by the 3rd to the 7th claimants were rejected and the gold was orderedto be handed over to the 1st and 2nd claimants.
Held, that the bars of gold had been produced before the court within themeaning of section 413-of the Criminal Procedure Code and that the Magistrate’sorder in favour of the 1st and 2nd claimants should be upheld.
1 {1946) 33 C. L. W. 46.
8 {1950) 42 G. Id. W. -69.
308
T. S. FERNANDO, J.—Retliar v. Pachiam
■AppHATaS, with application in revision, from an order of theMagistrate’s Court, Jaffna.
O.Ranganathan, for the 3rd to 7th claimants -appellants.
M. M. KumaratodasingTiam, for the 1st and 2nd claimants-respondents.
A. 3B. Keuneman, Crown Counsel, as amicus curiae, on notice issued bythe Court.
Out. adv. wit.
July 2, 1957. T. S. Ferhasdo, J.—
These appeals have been preferred by five claimants to certain barsof gold said to have been produced in the Magistrate’s Court of -Jaffna inconnection with a non-summary inquiry into charges of house-breakingand theft laid against two persons, Mailvaganam and Thiagarajah. Theclaims made by the appellants have been rejected and the gold orderedto be handed over to two other claimants said to be the owners of thejewellery which had been melted down to bars of gold. It is concededby learned counsel for the appellants that his clients have no right ofappeal and he invites me to deal with the order made by the learnedMagistrate by way of revision. Separate applications in revision havebeen filed by the appellants, and Fernando J. who allowed notice toissue also invited the assistance of Crown Counsel as ‘amicus curiae’."When the matter was argued before me I therefore had the assistance ofMr. Keuneman, Crown Counsel, in addition to Counsel on behalf of thecontending claimants.
Learned counsel for the appellants urged that the Magistrate’s orderin favour of the 1 stand 2nd claimants should be set aside for the followingreasons :—
The bars of gold were not produced before the court within the
meaning of section 413 of the Criminal Procedure Code.
There was no evidence before the Court to establish that any
offence appeared to have been committed regarding these barsof gold.
For the purpose of deciding the applications in revision it is necessarybriefly to set out the facts so far as they are relevant to the questionbefore this Court.
The house of the 1st and 2nd claimants had been burgled on the nightof May 16th 1955 and a large quantity of gold jewellery and a fairlylarge sum in cash were stolen. It is not disputed that the burglars wereMailvaganam and Thiagarajah. The Police arrested Mailvaganam whoadmitted his guilt and stated that some of the jewellery was buriedin the compound of his mistress’s house while the other jewellery had.
309
T. S. FERNANDO, J.—ReUiar v. Pachiam
been given to one Retnam and one Sittamp&lam to be melted downand sold. Jewellery was found buried in the compound of the house ofMailvaganam’s mistress and Retnam and Sittampalam both admitted inevidence during the non-summary inquiry that they had receivedvarious articles of jewellery which they had melted down and sold to the3rd to the 7th claimants who are the present appellants. The Policequestioned the appellants without any delay, recorded their statementsand took over from them the bars of gold which are the subject of theclaims.
No question arises in this Court regarding the articles of jewellerywhich were said to have been produced in the Magistrate’s Court. Theyappear to have been identified by the 1st and 2nd claimants, and the3rd to the 7th claimants are not interested in them.
During the non-summary inquiry Mailvaganam died and the questionof his committal for trial did not therefore arise. Upon his death , theMagistrate discontinued proceedings in this case, and the other accused,Thiagarajah, was charged in fresh proceedings and convicted. It is notclear what course these fresh proceedings took, but apparently thequestion of producing the bars of gold before court did not arise in thecase against Thiagarajah.
In regard to the first point urged by counsel for the appellants, it isnecessary to say that the learned Magistrate has in a considered orderfound that the bars of gold were produced before the Court. Mr. Ren-ganathan argues that “ produced ” in. section 413 of the Criminal Proce-dure Code must mean produced in evidence, and points to the fact thatthe bars of gold in question (a) have not been allotted identifying numbersas is usual when any productions are offered in evidence in court and (6)have not been even referred to in the evidence of any Police Officer.It must be remembered that the stage of the Police evidence had not beenreached when Mailvaganam died, but the bars of gold had been itemisedin a list attached to the report to court. The learned Magistrate stateshe is satisfied upon the evidence of the Inspector of Police that thesebars of gold were actually in the custody of the court and therefore" before court In the state of the facts in this case I am not preparedto disturb the finding reached in the court below-, and would- like toobserve in passing that an interpretation that “ produced ” in court insection 413 means produced in evidence may lead to rather unexpectedresults in the not uncommon case where an accused pleads; guilty to acharge of theft before any evidence is taken and the Police seek an orderof the court regarding the disposal of the stolen property.
In regard to the second point, Mr. Renganathan’contends that there is •no identity established between the jewellery Retnam and Sittampalamreceived from Mailvaganam.and melted down and the. bars of gold takenover by the Police from the appellants. He concedes that the statementsmade to the Police by Mailvaganam can be utilised in eviden’ce in thisproceeding, but argues that identity could have been established only bythe evidence of Retnam and Sittampalam to the effect that the jewellerygiven to them by Mailvaganam was; melted down by1 them and? the gold
310
Podihamine v. Jorarvis JPerera
so produced was the gold they sold to the appellants. He contendsthat the statements of Retnam and Sittampalam referred to by theInspector of Poliee in evidence at the claim inquiry constituted, onlyhearsay evidence. This contention overlooks the circumstance that bothRetnam and' Sittampalam had given evidence at the abortive non-summary inquiry on the same lines as their statements to the Polieereferred to in the evidence of the Inspector of Police. The appellants didnot elect to give any evidence at the inquiry. This omission by theappellants to show to the court in what mannar they came by the barsof gold and the circumstance that Retnam and Sittampalam are them-selves not jewellers but only workmen under jewellers have impressed thelearned Magistrate when he reached the conclusion that these bars of goldwere produced by melting down the stolen jewellery. The second pointraised by counsel must also be decided against the appellants.
In the result the appeals are rejected and the applications in revisiondismissed,..
Appeals rejected.Applications dismissed,.