156-NLR-NLR-V-47-JOSEPH-Appellant-and-THE-ATTONEY-GENERAL-Respondent.pdf
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Joseph v. The A ttomey-General■
1946Present : Wij eyewardene J.
JOSEPH, Appellant, and THE ATTORNEY-GENERAL,Respondent.
426—Application for revision in M. C. Colombo, 14,738.
Criminal Procedure Code, s. 413 (1)—Disposal of property under—Validity ofsuch order where accused is acquitted—Evidence Ordinance, s. 24—Admissibility of confession for other purposes than as a confession.
Where an accused is acquitted on the ground that the evidence toprove the alleged offence is insufficient, the court can, nevertheless,by virtue of section 413 (1) of the Criminal Procedure Code, make anorder for the disposal of the property produced before it by directingits delivery to a person entitled to its possession, if the court considersthat an offence has been committed in respect of that property. Theopinion of court as to the ownership of the property may be based on aconfession made by the accused ; section 24 of the Evidence Ordinancewhich makes confessions 11 irrelevant in a criminal proceeding ” does notprevent a court from acting on them in an application under section413 (1) of the Criminal Procedure Code.
A
PPLICATION to revise an order of the Magistrate’s Court,Colombo.
8. AUes (with him C. J. Ranatunge), for the petitioner.
A. C. M. Ameer, C.C., for the Attorney-General.
Cur adv. vult.
W1JEYEWARDENK J.—Joseph v. The Attorney-General.
447
October 3, 1946. Wlieyewardene J.—
The first accused was the cleaner and the second accused was the driverof a motor lorry employed by the Co-operative Wholesale Establishmentto transport 58 bags of Maidive fish from St. Sebastian Stores to NewMaradana Stores. Acting on certain information received by himimmediately after the lorry left the St. Sebastian Stores, Mr. Canagasuriya,the Chief Storekeeper of the Co-operative Wholesale Establishment,telephoned to the New Maradana Stores not to unload the bags of Maidivefish from the lorry but to inform him as soon as the lorry arrived at theNew Maradana Stores. Shortly afterwards, Mr. Canagasuriya receivedinformation of the arrival of the lorry at the New Maradana Stores andhe got the lorry driven back to St. Sebastian Stores under the supervisionof two of his officers. The lorry was examined in the presence of theaccused and it was found that there were only 48 bags of Maidive fishinstead of 58 bags. In place of the ten missing bags of Maidive fishthere were ten bags of “ Maidive dust Mr. Canagasuriya questionedthe second accused who said “ that ten bags of good Maidive fish wereunloaded at a certain place and ten bags of dust were put in its placeand that he got Rs. 2,000 ” and added that he acted in that way at therequest of some other employees of the Co-operative Wholesale Establish-ment. The second accused then handed to Mr. Canagasuriya the bundlesof notes containing Rs. 2,000. A little later the accused made writtenstatements P 5 when Mr. Canagasuriya told them that he would otherwisehand them over to the Police.
The accused were charged before the Magistrate under section 367of the Penal Code with the theft of ten bags of Maidive fish valued atRs. 570 and the Police produced before the Magistrate the bundles ofnotes which were handed to them by Mr. Canagasuriya.
The Magistrate convicted the accused and made an order directingRs. 570 to be paid to the Commissioner of Co-operative Developmentand confiscating the balance Rs. 1,430.
The conviction of the accused was set aside in appeal on the groundthat there was insufficient evidence against the accused, as theconfessions made by them were inadmissible under section 24 of theEvidence Ordinance.
After the acquittal, the second accused applied to the Magistratefor the return of the sum of Rs. 2,000 to him. The Magistrate refusedthat application and the second accused now brings up that order inrevision before this Court.
Several Indian decisions {e.g., Russvl Bibee v. Ahmed Moosajee 1 andKanaga Sabai et al. v. The Emperor 2) were cited before me in support ofthe argument that the Magistrate had jurisdiction to deal with the pro-perty even though the accused were acquitted. I find however, thatthese decisions have been given under section 517 (1) of the IndianCriminal Procedure Code, 1898, which conferred much larger powers onCourts even before its amendment of 1923 than section 413 (1) of our
11. L. R. {1906) 34 Cal. 347.
J. L. R. {1910) 34 Madras 94.
448
WIJEyEWARUi3Nil J.—Joseph v. The Attorney-General.
Code. Section 517(1) of the Indian Code enacted before its
amendment:—
“ When an inquiry or a trial in any Criminal Court is concluded,the Court may make such order as it thinks fit for the disposal of anyproperty or document produced before it or in its custody or regardingwhich any offence appears to have been committed, or which has beenused for the commission of any offence ”,
Under that section a Criminal Court would, therefore, have jurisdictionto make an order in four classes of cases—
(а)where property is produced before it,
(б)where property is in its custody,
where there is property regarding which any offence appears to
have been committed,
where the property has been used for the commission of the offence-
On the other hand section 413 (1) of our Code limits the jurisdictionof the Criminal Court only to two classes of cases—
where the property has been produced before it and an offence
appears to have been committed,
where the property has been produced before it and the property
has been used for the commission of any offence.
Section 413 (1) of our Code is identically the same as section 517 (1) ofthe Indian Code of 1882 and gives wider powers than section 418 of theIndian Code of 1872 which enacted—
“ when the trial in any Criminal Court is concluded, the Court maymake such order as appears right for the disposal of any propertyproduced before it, regarding which any offence appears to have beencommitted
The decisions of the Indian Courts given under the Codes of 1872 and1882 would, therefore, be helpful guides if they support the view takenby the Magistrate that he could act under section 413 in this case.
It has been held in a number of cases decided in India before 1898(e.<7-, Emperor of India v. Nilamba Babu 1) that where an accused is dis-charged or acquitted on the ground that the evidence to prove the allegedoffence was insufficient, the Court could, nevertheless, make an order forthe disposal of the property produced before it by directing its deliveryto a person entitled to its possession, if the Court considered that an offencehad been committed in respect of that property or that it had been usedin the commission of an offence.
In the present case the statement made by the second accused toMr. Canagasuriya and the written statements P 5 show clearly that anoffence has been committed and that the accused have no claim to thesum of Rs. 2,000 which should be regarded as property within the meaningof section 413 (1) in view of the provision of section 413 (4). It is truethat this Court has held these statements to be inadmissible in the criminalcase against the accused. But section 24 of the Evidence Ordinance11. L. B. (1879) 2 Allhbd. 276.
The King v. Don Samel.
449
which makes those statements “ irrelevant in a criminal proceeding ”does not prevent a Court from acting on them in an application undersection 413 (1) of the Criminal Procedure Code which is not a “ criminalmatter ” (vide The King v. Mack ]). A similar question came up fordecision in Queen-Empress v. Tribhovan 2 and West J. said in the courseof his judgment—
“ Confession ” in section 25 of the Indian Evidence Act of 1 of 1872means, as in section 24, “ a confession made by an accused person,”which it is proposed to prove against him to establish an offence.For such a purpose a confession might be inadmissible which yet forother purposes would be admissible as an admission under section 18against the person who made it (section 21) in his character of onesetting up an interest in property, the object of litigation or judicialenquiry and disposal.
Section 413 (1) of the Criminal Procedure Code which empowers aCourt to make such order “ as it thinks fit ” vests a discretion in theCourt. The Magistrate has exercised his discretion according to soundjudicial principles and I would, therefore, refuse this application.
Application refused.