091-NLR-NLR-V-49-KANDIAH-Appellant-and-RAMALINGAM-et-al.-Respondents.pdf
304
Kandiah v. Bamalingam.
1918Present : Basnayake J.
KANDIAH, Appellant, and RAMALINGAM et al., Respondents.
S. C. 1,203—M. C. Chavakachcheri, 24,744.
Criminal Procedure Code—Order for payment of compensation—Frivolous andvexatious complaint—Does appeal lie ?—Section 253 (B).
No appeal lies from an order for the payment of compensation under section253 (B) of the Criminal Procedure Code.
l{1941) 43 N. L. B. 192.
BASNAYAK B J.—Kandiah v. Ramalingam
305
_/hPEAL from a judgment of the Magistrate, Chavakachcheri.
H. W. Tambiah, with S. Sharvananda, for the complainant, appellant.No appearance for the respondent.
Cur. adv. vult.
March 3, 1948. Basnayake J.—
On a written complaint made by the appellant one Sinnappu Kandiahunder section 148 (1) (a) of the Criminal Procedure Code six persons byname S. Ramalingam, K. Sivalai, S. Kandan, S. Vaddan, S. Kanapathyand V. Poothan were charged and tried by the learned Magistrate,who is also a District Judge, under section 152 (3) of the CriminalProcedure Code on charges of being members of an unlawful assemblyand committing criminal trespass and theft of praedial produce, offencespunishable under sections 140, 143, 367 and 368 of the Penal Code.
The appellant and the accused were represented by their respectivepleaders. In the course of the trial after the appellant and one witnessfor the prosecution had given evidence the pleader for the appellantwas, on his own motion, permitted by the learned Magistrate to with-draw the case in order that the appellant may seek his civil remedy.Thereafter the learned Magistrate made the following record :—
“ I call upon the complainant under section 253 (B) to show causewhy Crown costs and compensation should not be ordered againsthim as his action is frivolous and vexatious and appears to be false.He states ‘ I am entitled to the land on a lease and thought I wasentitled to the land bona fide.. As the accused criminally enteredand obstructed me, I filed the action. ’ I cannot accept it. I orderhim to pay Rs. 5 as Crown costs and Rs. 10 to each of the accused. ”
Counsel for the appellant contends that his right of appeal againstthe order to pay compensation is not affected by sub-section (4) of section253 (B) which takes away the right of appeal against any order for paymentof Crown costs. He relies on the case of Ratnapala Terunanse v. MarthelisPerera1 in which Grenier J. following the decision in De Silva v. Gregoris 2and 99 P. C. Panadura 29,561 3 dealt with an appeal from an order forthe payment of compensation under section 197 (3) of the CriminalProcedure Code, No. 15 of 1898, on the footing that there was a right ofappeal.
I am afraid I cannot uphold the contention of counsel. A closeexamination of section 253 (B) reveals that the provision of sub-section (4)is a bar not only to an appeal against an order for the payment of Crowncosts, but also against the order for the payment of compensationin a case where such an order is made. Before elaborating what I havesaid I shall quote the section in full. It reads :—
“ (1) H in any case instituted on complaint under section 148 (1) (a)which a Magistrate’s Court has power to try, a Magistrate acquits ordischarges the accused and declares that the complaint was frivolous
1 {1909) 2 Weerakoon’s Reports 78.3 {1906) 1 A. G. R. 29.
3 S. C. Minutes 26th February 1909.
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BASNAYAKJJ J.—Kandiah v. Ramalingam
or vexatious, it shall be lawful for such Magistrate to order thecomplainant to pay by way of Crown costs a sum not exceeding fiverupees, and he may, in addition, at the same time, order the com-plainant to pay to the accused or to each of the accused when there aremore than one, such compensation not exceeding ten rupees to eachperson as the Magistrate shall think fit, which sum if paid or recoveredshall be taken into account in any subsequent civil suit relating to thesame matter.
Any sum awarded under this section shall be recoverable as ifit were a fine, and if it cannot be recovered, the imprisonment to beawarded shall be simple and for such term not exceeding in the caseof a sum awarded by way of compensation thirty days, and in the caseof a sum awarded by way of Crown costs fourteen days, as theMagistrate directs at the time of awarding such sum.
Before making any such order the Magistrate shall record andconsider any objection which the complainant may urge against themaking of the order, and if he makes such order, he shall record hisreasons for making the same.
No appeal shall lie against any order for payment of Crowncosts. ”
It will be seen from the foregoing that an order for payment of Crowncosts can be made only if, after acquitting or discharging an accused,the Magistrate declares that the complaint was frivolous or vexatious.In a case where a Magistrate makes an order for the payment of Crowncosts he may in addition at the same time make an order for the paymentof compensation.
An order for payment of Crown costs can exist without an order forthe payment of compensation, but an order for the payment of com-pensation cannot exist without an order for the payment of Crown costs.If then the statute forbids an appeal against the order for the paymentof Crown costs which is a sine qua non for the order for payment ofcompensation it cannot in my view be claimed that the order for pay-ment of compensation escapes the prohibition in sub-section (4). In myopinion when the legislature took away the-right of appeal against anorder for the payment of Crown costs the right of appeal against allorders dependent thereon ceased. Any other view would have the effect ofnullifying the statute. If in every case in which an order for thepayment of compensation is made an appeal were to lie it would amountto allowing a right of appeal against the order for the payment of Crowncosts. For, the order for the payment of compensation cannot bedisturbed without at the same time disturbing the order for the paymentof Crown costs as they both rest on the same foundation, viz., theacquittal or discharge of the accused and the declaration that thecomplaint is frivolous or vexatious. A construction which renders theexpress provisions of a statute nugatory and defeats its very object isunacceptable and must be rejected in favour of that which gives effectto the statute.
The decided cases including the one cited by counsel do not appearto take into account the wide difference between section 236 of theCriminal Procedure Code of 1883 and Sections 197 and 198 of the Code
BASNAYAKE J.—Kandiah v. Ramalingam
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of 1898. The decisions under the former provision seem to have beenaccepted as binding even after 1898 when it was replaced by the widelydifferent provisions of the Criminal Procedure Code of that year whichare now embodied in section 253 (B).
As the conclusion I have formed is against the current of authorityI shall briefly discuss the cases under two categories, viz.—
(а)those under the Criminal Procedure Code of 1883, and
(б)those under the Criminal Procedure Code of 1898.
The decisions under the Criminal Procedure Code of 1883 are recon-cilable with the provisions of section 236 of that Code which reads :—
“ If in any case instituted on complaint, a police magistrate acquitsthe accused under section 223 or section 232, and is of opinion that thecomplaint was frivolous or vexatious, he may, in his discretion, byhis order of acquittal, direct the complainant to pay to the accused,or to each of the accused when there are more than one, such com-pensation, not exceeding ten rupees, as the police magistrate shallthink fit.
The sum so awarded shall be recoverable as if it were a fine.Provided that, if it cannot be realized, the imprisonment to beawarded shall be simple, and for such term not exceeding thirty days,as the police magistrate directs at the time of awarding compensation.In any subsequent civil suit relating to the same matter, the courtshall take into account any sum paid or recovered as compensationunder this section.
If in any case enquired into or tried before a police magistratethe complaint be not proceeded with within such time as thepolice magistrate may deem reasonable, or if the complaint isdeclared by the magistrate to have been frivolous, it shall be lawfulfor such police magistrate to make an order for the complainant topay by way of Crown costs a sum not exceeding five rupees, suchsum to be recovered as if it were a fine ; and against such- order thereshall be no appeal.”
The above provision has three distinct limbs. The first authorises amagistrate to award compensation in a case in which he is of opinionthat the complaint is frivolous or vexatious. The second goes to prescribethe method of recovery of the compensation. The third and last providesfor the cases in which Crown costs may be imposed, and declares unoJiatu that there shall be no appeal from an order to pay Crown costs.
The cases of Hendrick v. Babun1 and Kanapathipillai v. Vellayanand another2 which hold that the prohibition against an appeal from anorder to pay Crown costs does not extend to an order to pay compensationunder section 236 (1) have, in my opinion, if I may say so with thegreatest respect, been rightly decided. But they cannot be regarded asbinding on the interpretation of section 253 (B) as they are decisions onsection 236 of the Code of 1883 which is so different from it. The onlyother reported decision which falls within this period is Jansev. Costa 3wherein Justice Lawrie holds that an appeal lies from an order to pay1 (1885) 7 S. C. C. 49.* (1886) 7 S. C. O. 200.
(1897) 2 N.L.R.299.
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BASNAYAKE J.—Kandiah v. Ramalingam
Crown costs in a case in which, the order is made without jurisdiction.
I find myself unable to agree with this decision, for I cannot see how aperson aggrieved by an order made without jurisdiction can obtain aremedy which is expressly denied to one aggrieved by the same orderwhen made with jurisdiction. The remedy of a person aggrieved byan order to pay Crown costs when made without jurisdiction is certiorari.
When the Criminal Procedure Code of 1898 replaced the CriminalProcedure Code of 1883 section 236 of the latter Code was replaced bythe following provisions of the former :—
“ 197 (1) If in any case instituted on complaint under section148 (1) (a) which a Police Court has power to try a Magistrate acquitsor discharges the accused and declares that the complaint was frivolousor vexatious, it shall be lawful for such Magistrate to order the com-plainant to pay by way of Crown costs a sum not exceeding five rupees,and he may in addition at the same time order the complainant topay to the accused, or to each of the accused when there are more thanone, such compensation not exceeding ten rupees to each person as theMagistrate shall think fit, which sum if paid or recovered shall be takeninto account in any subsequent civil suit relating to the same matter.
Any sum awarded under this section shall be recoverable as ifit were a fine and if it cannot be recovered the imprisonment tobe awarded shall be simple and for such term, not exceeding in thecase of a sum awarded by way of compensation thirty days and inthe case of a sum awarded by way of Crown costs fourteen days,as the Magistrate directs at the time of awarding such sum.
Before making any such order the Magistrate shall recordand consider any objection which the complainant may urge againstthe making of the order, and if he makes such order he shall recordhis reasons for making the same.
198. No appeal shall lie against any order for payment of Crowncosts.”
Though these two sections were repealed in 1921 they were combinedand re-enacted at the same time as section 253 (b). I am unable to reconcilethe decisions under the Code of 1898* which hold that an order for thepayment of compensation under section 197 is appealable with the plainwords of section 198 when read with section 197. Some of themf seemto proceed on the same footing as De Silva v. Gregoris 1 and hold that thedecisions of this Court under section 236 of the Criminal Procedure Codeof 1883 are binding. Others J proceed on the basis of Gunasekera v.Dines Appu 2 which holds that although the right of appeal from anorder for the payment of Crown costs has been expressly taken away
1 (1906) I A. C. R. 29.* (1905) 2 Bed. Rep. 69.
* Silva v. Joana (1905) 2 Bal. Rep. 60.
Gunasekera v. Dines Appu (1905) 2 Bal. Rep. 69.
De Silva v. Gregoris (1906) 1 A. C. R. 29.
Bastian Perera v. Feins Appu(S. C. Minutes of 2612/1909—P. C.Panadure 29,561).
Suppramaniapattar v. Mulhiahpattar (1912) 6 Leader 34.
Nomis v. Tamel (1914) 17 N. L. R. 265.
Ratnapala Unnanse v. Marthelis Perera (1909) 2 Weerakoon 78.t Bastian Perera v. Peiris Appu S. C. M. 1909—P. O. Panadure 29,561.
Ratnapala Unnanse v. Marthelis Perera (1909) 2 Weerakoor.78.
Gunasekera v. Dines Appu (1905)2 Bal. Rep. 69.
J Suppramaniapattar v. MuUiahpaUai (1912) 6 Leader 34.
Nomis V. Tamel (1914) 17 N. L. R. 26/
BASNAYAKE J.—Kandiah v. Ramalingam
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in the absence of a similar provision in regard to an order for the paymentof compensation an appeal lies ; still others following Janse. v. Costa(supra) and Silva v. Joana1 hold that an appeal would lie even froman order to pay Crown costs if the order is made without jurisdiction.From all these decisions I beg most respectfully to differ for reasonsgiven hereinbefore in my observations under section 253 (B). Though,on the question of the right of appeal, I have reached a conclusion againstthe appellants and must therefore reject the appeal. I shall examinethe case in the exercise of the powers conferred on this Court by section357 of the Criminal Procedure Code in view of the fact that the previousdecisions of this Court hold that an appeal lies from an order to paycompensation under the provision of the Code of 1898 which is almostthe same as the present section 253 (B).
The complainant came into Court on the footing that the accusedforcibly harvested the paddy crop of the field he had cultivated, andremoved the paddy. In the course of his evidence he admitted thatalthough the first accused was not present he had informed the KiramaVidane that he saw the first accused reaping. The complainant alsoclaimed that he possessed the field and cultivated the crop that hadbeen harvested. The Kirama Vidane stated in evidence that thecomplainant and the accused (he does not say which accused) were inpossession of the land since June, 1946. He also stated that he saw theaccused ploughing the land after June, 1946, when the accused disputedthe complainant’s right to cultivate the field. It was after thiswitness’s evidence that the proctor for the complainant moved towithdraw the case with a view to institute a civil action.
In this state of the facts I am not prepared to say that there is noevidence to support the view formed by the learned Magistrate.
Learned counsel for the appellant urged that the learned Magistrate’srecord indicated that he had not appreciated the difference between afalse case and a vexatious case. Although the learned Magistrate atone stage says the charge appears to be false and later characterizes itas absolutely false he leaves no room to doubt that in his view it wasvexatious. In Searinno v. Muttusamy2 (3 Judges) Justice de Sampayoobserves at p. 114 —
“ It is undoubtedly true that every false case is not necessarilyvexatious. The complainant may prefer the charge on the informationof others, and the falsity of the charge may not for that or some otherreason be known to him, and the charge may be made, not with the inten-tion of harassing the accused, but with a view to justice. In such casesthe complainant will hardly be guilty of vexatious prosecution. Butif the facts constituting the charge are deposed to by the complainantas from his personal knowledge, and the charge turns out to be false,and is shown to have been made with the deliberate intention,not merely of punishing the accused, but of harassing him, I think theproceedings are vexatious in every sense of the word, and are withinthe statutory provision of section 197 (1). ”
The action of the complainant in this case, when examined in the lightof the meaning given to the expression “ vexatious ” by Justice de Sampayo,affords no ground for interference with the order of the learned Magistrate.
1 (1905) 2 Bal. Rep. 60.* (1917) 20 N. L. R. 111.
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BASNAYAKE J.—Kiri Mudiyanse v. Potuhera Police
I cannot refrain from drawing the learned Magistrate’s attention tohis omission to observe meticulously the requirements of sections 195and 253 (B) of the Criminal Procedure Code in that he has not recordeda verdict of acquittal. Section 195 requires that it should be donewhen permission is given to withdraw a case. Section 253 (B) also requiresthat an order of acquittal or discharge should precede a declarationthat a complaint is frivolous or vexatious. These omissions have notin this instance in my view occasioned a failure of justice. I affirmthe order of the learned Magistrate.
Order affirmed.