071-NLR-NLR-V-48-IN-RE-SUPPIAH.pdf
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DIAS J-—In re Suppiah.
1946Present: Dias J.
In re SUPPIAH
In revision—M. C. Colombo, 16,289.
Criminal procedure—Conviction for criminal breach of trust—Order fordisposal of property regarding which offence was committed—CriminalProcedure Code, s. 4.13 (1).
A criminal court has no power to order goods, in respect of whichcriminal breach of trust has been committed, to be restored to theowner.
A
PPLICATION to revise an order of the Magistrate’s Court.Colombo.
H. A. Koattegoda, for the petitioner.
S. J. Kadirgamar, for the 2nd and 3rd respondents.
Cur. adv. vult.
October 23, 1946. Dias J.—
In this case the Police charged one Madasamy Suppiah with havingon April 23, 1946, committed criminal breach of trust of 15 cases of
DIAS J.—In re Suppiah.
215
Capstan Navy Cut cigarettes, the property of the third respondent,-which had been entrusted to Suppiah as a carter, in breach of section 390of the Penal Code. Amongst the productions referred to in this plaintare 205 tins of cigarettes—Capstan Navy Cut (P2). It appears thatSuppiah misappropriated these cases and transferred them to Somapala,v/ho transferred them to Noris, who in turn sold them to the secondpetitioner Mahatun; in whose possession 205 tins of cigarettes werefound.
Mahatun gave evidence at the trial for the prosecution.
After trial the Magistrate convicted Suppiah who was sentenced toundergo 2 years’ rigorous imprisonment. The Magistrate then madethe following order :“ It is clear from his (Mahatun’s) statement that
P2 (the 205 tins of cigarettes) were stolen goods bought from NorisAppu. I order the restoration of the tins to the complainant ”, i.e., thethird respondent, whose servant the second respondent is.
It is obvious that this order was made under section 413 (1) of theCriminal Procedure Code.
The petitioners who are Mahatun, and his brother the first petitionersaid to be the owner of Sirima Stores, where the cigarettes were found,now move the Court to revise the Magistrate’s order and that thecigarettes should be restored to them.
I accept the findings of the Magistrate. The cigarettes are propertyproduced before the Magistrate’s Court regarding which an offence ofcriminal breach of trust appears to have been committed within themeaning of section 413 (1) of the Criminal Procedure Code. It is laiddown in Shand v. Atukorale 1 that a criminal court has no power to ordergoods in respect of which criminal breach of trust has been committedto be restored to the owner. It is clear that not only are these cigarettetins the subject of a criminal breach of trust but they also passed throughthe hands of two persons before Mahatun purchased them. I see noreason why I should not follow this decision, which although not citedat the argument, appears to be exactly in point.
I think it was the duty of the Magistrate in these circumstances torestore the property to the possession in which it was found, leavingit to the respondents to establish any claim thereto in a civilaction.
No doubt as laid down in Thyriar v. Sinnetamby ‘ and Abdul Hamid v.Alvarez2 a Magistrate is vested with a judicial discretion by section 413in making an order for the restoration of property; but this Court hasthe undoubted power in proper cases to revise the exercise of thatdiscretion although it would be slow to do so.
In this case the Magistrate has made a wrong order which must berectified.
1 (.1934) 37 N. L. R. 53.
* (1916) 3 C. W. R. 9.
a (1917) 4 C. W. R. 250.
216NAGALINGAM AJ.-Kalu v. T. H. Silva.
I therefore set aside the order of the Magistrate and direct that the205 tins of cigarettes (P2) should be forthwith restored to the possessionof Mahatun, the second petitioner.
Since writing this judgment Mr. Kadirgamar has brought to mynotice the case of Shand v. Atukorale (supra) as he thought it was his dutyto do so. Counsel has acted rightly and properly. For the reasons Ihave given earlier I cannot distinguish this case from that case.
Order set aside.