( 482 )
Present: Akbar J.
INSPECTOR OF POLICE, AVISSAWELLA v. FERNANDO.
P. C. Avissawella, 18,559.
Order of discharge—Proper remedy of complainant—Appeal—Applica-tion for revision—Criminal Procedure Code, s. 325.
Where am accused person is warned and discharged, the remedyopen to the complainant is by way of appeal.
Where the proper remedy is by way of appeal, an application forrevision will not be entertained save in exceptional circumstances.
PPLICATION by the Solicitor-General to revise an order ofthe Police Magistrate of Avissawella.
Schokman, C.C., in support.
May 13, 1929. Akbak J.—
This is an application by the Solicitor-General to revise the •sentence passed on the accused. It is true that on the authorityof a decision of Hutchinson C.J., when the Attorney-General askedfor an enhancement of the punishment he stated that the properprocedure was to move in revision, but these proceedings here donot show that this is a similar case to the one considered by Hutchin-son C.J. On February 4 the accused pleaded guilty and then the
( .483 )
Magistrate records as follows:—“ From the statement of W. D.Peiris, Clerk of D. J. R. Gunawardene, a witness for the prosecution,it appears that he had taken the rubber just a little while before.This, appears to be purely technical. I warn and discharge. ”
Mr. Rajapakse, for the accused, has objected to my dealing withthis case in revision on the ground that the Solicitor-General shouldhave appealed from this order, and he has quoted several authoritiesin his favour. It was held in the case of Suppiah v. Lokv Banda1and Schokman v. John2 that where a Police Magistrate refers thecomplainant to his civil remedy and discharges the accused, thecomplainant’s remedy is to appeal under section 338 of the CriminalProcedure Code as it is a final order, and that it is not necessary toget the sanction of the Attorney-General because it is not an acqu-ittal. the case of Ooonewardena v. On* it was held that where theproper remedy is by way of appeal the Supreme Court will rarelyinterfere by way of revision. Finally Mr. Rajapakse quoted ajudgment of my brother Lyall Grant J. in P. C. Dandegamuwa(In Revision) No. 670,4 in which a similar point is discussed. Theretoo it was an order under section 325 of the Criminal ProcedureCode, and the Supreme Court refused the application by way ofrevision because it held that the Attorney-General should haveappealed under section 338 of the Criminal Procedure Code. I seeno reason why I should decline to follow this judgment becausethe Pqlice Magistrate’s order, as he did not record a verdict ofguilty, clearly is one under section 325 of the Criminal ProcedureCode. This case is on all fours with the case I last quoted.
It is objected by Mr, Schokman, Crown Counsel, that undersection 338 the aggrieved public officer will not have the 28 dayswhich are allowed in the case of an appeal from an acquittal and thatthis is inconvenient to the public service. In deciding questions oflaw I am not concerned with the convenience of or the incon-venience to public officers. My duty is to interpret the law as itstands, and I see no reason why I should reserve the point fordecision by a Bench of two or more Judges. I see no reason why Ishould do so, because I quite agree with my brother Lyall Grant.J.
I would therefore refuse the application.
» C. W.Ir. 127.* C. W. R. 93.
3 2 A.C. R.172.
* S. C. M., October 31,1928.
( 484 )
Present: Lyall Grant and Akbar JJ.
C. Chiiaio, 242.
Lunacy—Order for maintenance of lunatic—Powers of the DistrictJudge—Ordinance No. 1 of 1873, s. 14..
Where a person is adjudged a lunatic the District Court has nopower to order any other person to pay for the maintenance ofthe lunatic.
PPLICATION to revise an order of the District Judge ofChilaw.
Samarawickreme, C.C., in support.
March 6, 1929. Lyall Grant J.—
On September 17, 1928, one Punchi Nona was, by the DistrictJudge of Chilaw, remanded to the Lunatic Asylum, Angoda, pendingnotification of the pleasure of His Excellency the Governor. Onthat date the learned District Judge made order directing thehusband of the lunatic to pay a sum of Rs. 10 per mensem for hermaintenance.
It appears this order was originally made with the consent of thehusband but that subsequently the District Judge had refused tomodify or rescind the order. These facts are brought to our noticeby Crown Counsel on behalf of the Government. Crown Counselhas referred us to section 14 of the Lunacy Ordinance, No. 1 of 1873,which empowers a District Court to inquire into circumstances andproperty of a person to be kept in custody as a person of unsoundmind and to direct the payment of so much of the person’s property(if that property is sufficient for his maintenance) as may be necessaryto pay for his maintenance. It is, however, represented to us thatthe section gives no power to the Court to order another person topay for the maintenance of a lunatic, and accordingly we nrerequested by the Crown to rescind the order made by the learnedDistrict Judge. I think there is no doubt that the order is wrong,that the District Judge exceeded his power, and that the ordermust be rescinded. The application is allowed.
Akbar J.—I agree.
INSPECTOR OF POLICE, AVISSAWELLA v. FERNANDO