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Present: Akbar J.
HENAYA v. BANDIYA.878—P. C. Kandy, 26,502.
Criminal trespass—Charge read out from summons—Intent not set out—Plaint specifying intent of accused.
Where, in a case of criminal trespass, the oharge was read outfrom the summons, which did not specify the intent with which theaccused entered the land,—
Held, that the conviction was irregular.
y^PPEAL from a conviction by the Police Magistrate of Kandy.
A. Rajapakse, for appellant.
Navaratnam, for respondent.
January 17,1929. Akbar J.—
This is an appeal by the accused against a conviction for theoffence of criminal trespass and sentence of a fine of Rs. 50.The counsel for the appellant raises an objection to the convictionwhich, 1 think, goes to the root of the whole case. It is clear fromthe authorities, namely, cases reported in 3 C. W. R. 42 and3 C. W. R. 292, that a conviction on a charge of criminaltrespass in which the intent with which the accused entered theland is not set out is defective. In this case the Police Magistrate,read out the charge from the summons, but the copy of the summonsin the record is to the effect that the accused committed criminaltrespass by entering into the land of the complainant with intentto commit an offence. The Police Magistrate himself recognizesin his judgment this defect. The opening paragraph of his judgmentis as follows :—
“ The charge is one of criminal trespass with intent to commitan offence. The accused were charged from the summons,and this is how the summons reads, but it has not beenfully copied out from the plaint, which reads * with intentto commit an offence or to intimidate, insult, or annoy thecomplainant.’ ”
He winds up his judgment by saying that the action of the accusedannoyed the complainant and forced him into this action.
Counsel for the respondent himself admitted that this was aserious defect and that the conviction should be set aside, but hestrenuously contended, on .the authority of the first named case I
26J. 2f. 9487 (11/46)
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1929 have mentioned, that the case should be remitted for a fresh trial.Akbar j. It will be seen from the authority in 3 C. W. R. 42 that I have atfenayo v discretion in the matter whether I should acquit the accusedBandiya altogether, or remit the case for a fresh trial. From the evidenceled, I think it will only lead to a waste of time if the case is remittedfor a fresh trial.
The dispute is with regard to the identity of the land which hasdevolved, on the accused from one Kira, and the identity of theland which has been leased to the complainant, also by Kira.
According to the evidence accused derives his title from Kirato a lot of land which Kira obtained by right of purchase ; thelot in question originally belonging to one G. Ukku who, by a deeddated May 31, 1911, sold that land to Kira, and Kira sold theeastern portion to one W. Ukku, the mother-in-law of the firstaccused. The first accused entered on this field and worked it atthe request of W. Ukku. ' The deed is marked D 2 and it definitelystates that Kira derived title to the lot by deed of transferdated May 31,1911, and that it is one pela paddy sowing in extent,and that the western boundary is the field belonging to DingiraWaduwa, who is admitted by Kira to be the father of Kira.
Complainant derives his title from certain leases from Kira, and indocuments P 2 and P 6 the land is described as being 15 lahas inextent and that Kira derived title by paternal inheritance fromhis father Dingira, but Kira states in evidence in cross-examinationthat all that he derived from his father he transferred, in 1916, toLoku Banda and Ukku Banda, who sold it to Menika Mason, andthat as a result of litigation between him and Menika, Menika wasplaced in possession thereof. All this tends to show, on thecomplainant’s own deeds, that he has no right to be in possessionof any land belonging to Kira. The Police Magistrate bases hisdecision on the meaning of the word “ Urakotakumbura.”
This case shows, to my mind, the danger of deciding civil disputesby a short cut through the Police Court. The accused, to mymind, entered into possession of the lot in assertion of a bona fideclaim of right, and no useful purpose will be served by my sendingthis case back for a new trial.
In my opinion, the disputes which have arisen between the partiescan only be settled in the Civil Court, on proper issues framed inthe case. I therefore set aside the conviction and discharge theaccused.
HENAYA v. BANDIYA