061-NLR-NLR-V-58-IN-RE-JAYAKODY.pdf
Present :Basnayake, A.C.J.
1955
In re JAYAKODY
S. C. G05—Ajyplicalion for Revision in M. C. Avissatcella, 13,000
Summons to produce a document or iking—JJulg oj Court to hear evidence first—Criir, in:if
Procedure Code, s. GC (/).
"Where n. Magistrate, purporting to act under section 06 (1) of theCriminal Procedure Code, issued summons on nn accused person requiring him t<>produce a particular elephant before the Court—
Held, that before nn order under section GO of tho Criminal Procedure Codo-is made, tho evidence on which the Magistrate forms the opinion that it isnecessary or desirable that a particular document or thing should be producedbefore tho Court should be on the record.- – After such material is placed before^tho Court it should weigh such evidence and make the order.
A PPLICATIOX to revise an order of the Magistrate's Court,.Avissau’dla.
//. V. Perera, Q. CJ., with _!/. M. Kirt/utrul-nlnsingJtani, for 2nd Accused*Pet it ioner.
O. K. Chilly, with .4. M. Ynnignsooriyar, for Complainant-Respondent.
September/), 1955. Bass.ivakf.. A.C.J.—
This is aji application for the revision of an order made by the learnedMagistrate in proceedings for criminal breach of trust against two personanamed L. Don Xarthclis Appuhamy and XV. H. Jayakody. The alle-gation in the plaint was that Karl he!is Appuhamy, the 1st accused,committed criminal breach of trust of an elephant- valued at Its. 7,000and that the 2nd accused aided and abetted the 1st accused in thecommissou of that offence.
On the very day that the plaint was fded and summons ordered on theaccused, the learned Magistrate made the following order regarding theproduction of the animal :—
" Issue summons for 1-1.10.04 and notice 2nd accused undersection GG of the Criminal Procedure Code to produce animal on that
day
As summons had not been served by 14th October it- was re-issued andmade returnable on 2Sth October. On that date the accused appearedand pleaded not guilty to the charge ; but the elephant was not produced.The learned Magistrate thereupon made the following order :—
Call case on 11.11.54 regarding custody of the elephant andquestionor security. Elephant to be produced on that date ”.
On 11th November the Proctor for the accused contended that thelearned Magistrate had no jurisdiction to order the elephant to be pro-duced. After hearing Counsel for the prosecution the learned Magistratemade the following order :—
“I do not think that I could go back on my earlier ordereven assuming that it was done without jurisdiction. My own viewis that the ease cited by Mr. Jacolyn docs not .apply in this case”.
t: Eor these reasons I direct that the animal be produced in Courton 25.11.54”.
Learned Counsel for the petitioner submits that the learned Magistratehas no power to make the order lie made.
Section 6G (1) of the Criminal Procedure Code provides that wheneverany Court considers that the production of any document or other thingis necessary or desirable for the purpose of any proceedings under theCode by or before such Court, it may issue a summons to the person inwhoso possession or power such document or thing is believed to be,requiring him to attend and produce it or to produce it at the timeand place stated in the summons.
• It is clear from the sub-section that no order can be made thereunderunless the Court considers that the production of a particular documentor thing is necessary. A Court can consider that the production of anvdocument or thing is necessary or desirable only upon material properlyplaced before it.
Here there is no material on the record to show why it was necessaryor desirable that the elephant should be produced for the purpose oftrying the charges against the accused. In the absence of such materialthe order of the learned Magistrate cannot be sustained. Before anorder under section (56 of the Criminal Procedure Code is marie, theevidence on which the Magistrate forms the opinion that it is necessaryor desirable that a particular document or thing should be produced beforethe Court should be on the record. After such material is placed beforethe Court it should weigh such evidence and make the order.
I set aside the order of the learned Magistrate directing the productionof the elephant at the present stage of the proceedings leaving it open tohim to make such an order should it become necessary or desirable to doso upon evidence placed before him at any future stage of the trial. Therecord should go back so that the proceedings which were interrupted1>3' this application may now be continued.
Order set aside.