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Sri Lanka Law Repons
COURT OF APPEAL.
P.R.P. PERERA . J..
C.A. No. 203/84 – M.C. KANUWANA 58534.
MARCH 22, 1990.
Criminal Procedure – Public Nuisances – Obstruction to water course – Conditional order■ Order absolute-Duty to begin evidence-Code ol Criminal Procedure Act, No. t5oi t979.ss. 98 and 101.
A report in terms ot section 98(1) of the Code ot Criminal Procedure Act, No. 15 of 1979,was filed against the original appellant and fifth respondent alleging obstruction of a watercourse. The Magistrate made a conditional order directing the appellant and sixthrespondent not to interfere with the water course and to allow it to take its original course.The fifth respondent agreed to comply with the order. The appellant sought to have theorder set aside under s. 98(2) of the Code of Criminal Procedure Act. The Magistrate tookevidence directing the appellant to begin Having taken evidence the Magistrate madeconditional order absolute in terms of section 101 (3) of the Code. The appellant complainedof prejudice in being directed to begin and relied on the Indian provisions.
The Indian provisions are different Irom the provisions in our Code of CriminalProcedure.
In proceedings commenced under s. 98(1) the Magistrate is obliged to make aconditional order in the first instance only if he considers it necessary having regard to areport filed under that section and on taking such evidence (if any) if he thinks fit.
Section 98(2) requires a person against whom such order is made, if he is dissatisfied withsuch to move to have it set aside or modified in the manner provided
Section 101(1) lays down the procedure to be followed when such party appears in Courtand moves to have the order set aside or modified. This section makes it mandatory forthe Magistrate to take evidence in the matter. A judicial investigation must be held and afterit, if the court thinks that the conditional order is not reasonable and proper in view of thecircumstances of the case, it will either rescind it entirely or modify its terms so as to bringit into comtormity with the requirements ot the case. In the latter event the order so modifiedwill be made absolute and the provisions of section 102 and section 103 of the Code willbecome applicable.
If however the court upon the evidence led, considers the defendant has not been able tomeet the case against him. the original conditional order will be made absolute and thentoo sections 102 and 103 will apply to such order absolute
Greena Fernando v. Teckla Saparamadu
The party who moves to have the conditional order set aside or modified must in the firstinstance adduce evidence to show that the order is not reasonable and proper.
The Magistrate here followed the correct procedure.
Caoes referred to:
King Emperor v. Hingu 1909 31 All. 453.
Shura v. Tara Singh 1926 49 All. 270.
Emperor v. Abdul Careem 1927 49 All. 453.
APPEAL from order of the Magistrate of Kanuwana.
D.IV. Abeykoon with D.R. Ashok and N. Jayawardena lor 5th Respondent -Appellant.J.C. Weliamuna for substituted 1st Respondent-Respondent.
S. Aluvihare, State Counsel, for Complainant-Respondent.
June 04, 1990.
P.R.P. PERERA, J.
The complainant-respondent filed a report in terms of section 98( 1) of theCode of Criminal Procedure Act, No. 15 of 1979, in the Magistrate’s Courtof Kanuwana, against the original appellant and the fifth respondent to thepresent appeal alleging that they obstructed a water course that wentacross a road and their respective gardens. Thereupon the learnedMagistrate made a conditional order dated 08.09.82, directing the appellantand the sixth respondent not to interfere with the watercourse and to allowit to take its original course. The fifth respondent agreed to comply withthis order. The appellant however sought to have this order set aside interms of section 98(2) of the Code of Criminal Procedure Act. On 15thSeptember, 1982, the appellant moved to have the conditional order setaside. The learned Magistrate having taken evidence underthe provisionsof section 101(1), of the Code, delivered his order on 04th July, 1984,making the conditional order Absolute, in terms of section 101(3), of theCode. The present appeal is against this order.
The sole ground of appeal upon which Counsel for the appellant reliedwas that the Magistrate had misdirected himself on the question as towhich party should "begin" in the proceedings under section 101(1). TheMagistrate had made order in the instant case that the appellant shouldbegin. It was the contention of Counsel, that this order had caused serious
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prejudice to the appellant's case, and was not in accord with the law.Counsel complained that the Magistrate had adopted a wrong procedurein these proceedings by directing the appellant to begin.
It was Counsel's contention that the provisions of our Code and theCriminal Procedure Code of India, were identical on this matter, and thattherefore Courts in this country as a matter of practice have recourse tothe decisions of the Supreme Court of India on matters that have not beenauthoritatively decided by the Courts of Sri Lanka. The position in India,according to Counsel, in proceedings of this nature, was that thecomplainant it was who has to start proceedings by adducing evidenceand then the party showing cause may produce his own evidence if soadvised. He cited a passage in support of this proposition from Ratanlaland Thakore on the Criminal Procedure Code, 9th edition at page 96,which reads as follows
“The complainant has to start proceedings by adducing evidence,and then the party showing cause may produce his own evidence, ifso advised. When this is done, but not before, the Magistrate can makethe conditional order Absolute, if he finds sufficient reason for doingso.”
This position is borne out by several decisions of the Indian SupremeCourt vide King Emperor v. Hingu (1), Bhura v. Tara Singh (2) andEmperor v. Abdul Careem (3).
Before however applying the interpretation placed by the Indian Courtson this particular provision, it will be necessary to consider whether thewording of the two sections are in identical terms. The relevant sectionsof the two Codes are therefore reproduced below:-
Section 138( 1) of the Indian Code, which is the provision equiva-lent to section 101 reads as follows
“If the person against whom an order under section 133 is made,appears and shows cause against the order the Magistrate shalltake evidence in the matter as in a summons case."
Section 101(1) of the Sri Lankan Code however, is in thefollowing terms:
“If such person appears and moves to have the order set asideor modified the Magistrate shall take evidence in the matter'.
Greena Fernando v. Teckla Saparamadu (P. R. P. Perera, J.)
On a comparison of these two sections, it is seen that they are notidentical in their terms. There is no requirement in section 101(1) in ourCode for the Magistrate to take evidence in such matter as in a summonscase, as is required by section 138(1) of the Indian Code.
Sohony in his work on the Criminal Procedure Code of India, 1973,18th ed. at page 1039, states thus:
“Since evidence has to be recorded as in a summons case, theprovisions of section 254 of the Code of Criminal Procedure will apply,and the Magistrate should first hear the complainant and take all suchevidence as he may produce, and then the evidence of the other side."
Further, according to the definition given by Ratanlal, on the CriminalProcedure Code, 13th ed. “A summons case", means a case relating toan offence. The two sections are therefore not identical in their terms.
I am therefore of the opinion that the construction placed upon section138(1) of the Indian Code on this particular matter would not be helpfulin deciding this question. The Indian case law on this particular matterwould not be helpful in this regard.
In terms of section 101 (1) of our Code, where a person against whoma conditional order is made, moves to have such order set aside ormodified, the Magistrate is directed to take evidence on the matter. If theMagistrate is satisfied that the order is not reasonable and proper, he shalleither rescind the same or modify such order (vide section 101 (2)).Further, in terms of section 101 (3) if the Magistrate is not so satisfied theorder shall be made Absolute.
In this context it is relevant also to note that in proceedings com-menced under section 98(1), the Magistrate is obliged to make aconditional order in the first instance only if he considers it necessaryhaving regard to a report filed under that section, and on taking suchevidence (if any) if he thinks fit. Section 98(2) requires a person againstwhom such order is made, if he is dissatisfied with such order to move tohave it set aside or modified in the manner hereinafter provided.
Section 101(1) lays down the procedure to be followed when suchparty appears in Court and moves to have the order set aside or modified.This section makes it mandatory for the Magistrate to take evidence in the
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matter. The Magistrate therefore, must necessarily proceed to hold ajudicial investigation and call for evidence. If after such investigation theCourt thinks that the conditional order is not “reasonable and proper" inview of the circumstances of the case, it will either rescind it entirely ormodify its terms so as to bring it into conformity with the requirements ofthe case. In the latter event the order so modified will be made Absoluteand the provisions of section 102 and section 103 of the Code will becomeapplicable.
If however the Court upon the evidence led on either side considersthat the defendant has not been able to meet the case against him, theoriginal conditional order will be made Absolute, and in this case too theprovisions of sections 102 and 103 will apply to such order Absolute.
On a consideration of the relevant provisions and the scheme of theCode of Criminal Procedure Act, No. 15 of 1979, it would appear to beclear that the party who moves to have the order set aside or modifiedmust in the first instance adduce evidence to show that the order is notreasonable and proper. Vide section 101(2). If however the Court uponevidence led on either side in the course of the inquiry considers that thedefendant has not been able to combat the case against him the originalconditional order will be made Absolute.
In my opinion the learned Magistrate has acted in accord with theabove provisions of the Code of Criminal Procedure Act, in the instantcase. There is no doubt that the Magistrate has afforded an opportunityto all the parties to adduce evidence, and has arrived at his finding havinggiven due consideraion to the material placed belore him.
Having regard to the provisions of section 98 and section 101 of theCode of Criminal Procedure Act, I hold that the procedure adopted by thelearned Magistrate calling upon the appellant to begin in the present caseis in accord with the provisions laid down in the Code. I therefore affirmthe order of the learned Magistrate and dismiss the appeal.