006-NLR-NLR-V-02-HOPE-v.-MUTTUSAMY.pdf
( 13 )
HOPE v. MUTTUSAMY.P. C., Badulla, 15,770.
Acquittal of accused—Cancellation of order of acquittal—Jurisdiction—
Time for appearance of complainant—Criminal Procedure Code, s.
228—Ordinance No. 22 of 1890.
When a Police Magistrate, acting under the provisions of section228 of the Criminal Procedure Code as amended by OrdinanceNo. 22 of 1890, makes order acquitting an accused owing to theabsence of the complainant, he has no power to cancel thereafter thatorder. The only remedy is an appeal by the Attorney-General.Under section 228 the complainant has, for his appearance, thewhole of the day appointed—that is, the whole of the usual .court,hours of that day.
'JpHE facts of the case sufficiently appear in the judgment.
Jayetvardena, for appellant.Wendt, for respondent.
4th March, 189b. Bonser, C.J.—
This is an appeal from a conviction of the Police Court of Badulla.
The ground of appeal of the defendants is, that they have beenalready acquitted, and that therefore the Magistrate had no rightto try them, and in my opinion that is made out. I find an entryon the record mode by the Magistrate: “January 20. Complainant“ absent; first and second accuseds present; accuseds acquitted ;" section 228 of Ordinance No. 22 of 1890; ” and that entry isinitialled by the Magistrate. Then across this is written “ Cancelled;“ parties since present.” But when a Magistrate has made an orderacquitting an accused, he has no power to cancel that order. Theonly remedy is an appeal by the Attorney-General. No doubtthe Magistrate quite misconceived the meaning of this section228, which he cites. Section 228 provides that “ if upon the“ day appointed for the appearance of the accused, or any day“ subsequent thereto to which the hearing may be adjourned,“ the complainant does not appear, the Police Magistrate shall,“ notwithstanding anything hereinbefore contained; acquit the“ accused, unless for some reason he thinks proper to adjourn“ the hearing of the case to some other day.” Now, what appearsto have taken place here was this. The Magistrate sat earlierthan usual on the morning of the 20th of January. The accused7-
1896,Monk 4.
( H )
1899. were there, but the complainant was not, and thereupon theMarch 4. Magistrate acquitted them. The section did not warrant juiy suchBonbbb, C.J, proceeding ; it does not say, “ if the complainant does not appearat the hour appointed,” but“ upon the day appointed,” and thereforehe has the whole of the day for his appearance, i.e., the whole ofthe usual court hours. But although the Magistrate acted wrongly,yet in acquitting he did'an act within his jurisdiction, and havingdone so he was functus officio. His mistake could only be set rightby an appeal. In spite' of this acquittal the Magistrate cancelledhis order, and the case was tried on a subsequent day, and resultedin the conviction of the appellants, who were sentenced—the firstaccused to pay a fine of Rs. 20, in default to undergo one month’srigorous imprisonment; and the second and third accused to payeach a fine of Rs. 10, or in default to undergo one month’s rigorousimprisonment.
This Court can, however, exercise its powers of revision andset aside the order of acquittal of the 20th of January ; but havingregard to the trifling nature of the offence, as shown by the punish-ment awarded, it will not do so in this instance.
The conviction is set aside, and the accused are severally acquitted.