094-NLR-NLR-V-01-KUTTALAM-CHETTY-v.-INA-MUTTU.pdf
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1896.MareK 4.
KUTTALAM CHETTY v. INA MUTTU.
P. C., Colombo, 41,035.
Criminal Procedure Code, e. 238—False and vexatious ease—Case “ institutedon complaint ”—Case instituted on formal police report—Duty of policeofficers as to complaints made to them—Compensation—Crown costs.Where a Police Magistrate takes proceedings on a formal writtenreport made to him by a police officer under sub-section 2 of section152 of the Criminal Procedure Code, and finds the complaint frivolousor vexations, it is not open to him to condemn the party on whoseinformation such written report was made either in compensation tothe accused or in Crown costs.
A case “ instituted on complaint" (referred to in section 236 of theCriminal Procedure Code) is a case instituted on a complaint made by aperson to a Police Magistrate in terms of section 152 (1) of that Code,and does not mean a case instituted on a “ formal written report" madeby a police officer to the Magistrate, in terms of section 152 (2).
The reason why the order to pay compensation to the accused isrestricted to cases “ instituted on complaint” is because the Legislaturethought that the police would not institute cases without having pre-viously made due inquiry and satisfied themselves that there was a real,substantial case which ought to be dealt with by a Police Court. Ifthe result of the inquiry made by the police is to leave room for doubtwhether the case is not a frivolous one, they should refer the informant tothe Police Court, and not take upon themselves the responsibility ofinstituting a case of the bona fides and merits of which they are notsatisfied.
O
N the 8th February, 1896, Police Sergeant Jansen informedthe Police Court on the complaint of one Kuttalam
Chetty that Ina Muttu, on the 4th February, 1896, “dishonestly“ misappropriated to his own use a double bullock cart and three“ coast bulls, all of the value of Rs. 70, and thereby committed an“ offence punishable under section 389 of the Ceylon Penal Code."The Magistrate examined witnesses, including Kuttalam Chetty,and acquitted the accused and recorded as follows :—“ The case“ is false and vexatious. The complainant is ordered to pay Rs. 5“ Crown costs, in default fourteen days’ imprisonment; and“further to pay Rs. 10 compensation to accused, in default“ fourteen days’ imprisonment (section 236, Ceylon Penal Code).”Kuttalam Chetty was treated as the party referred to as“ complainant ” in the above order, and the fines were recoveredfrom him.•
He appealed from the order condemning him in compensationand Crown costs.
Tirunavukkaraau, for respondent, submitted that no appeal layfrom the order as to Crown costs.
1896.Mareh 4.
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-{Pereira, for appellant. The Code, it is true, enacts thatfrom an order as to Crown costs there shall be no appeal. Thatmeans an order regularly made under sub-section 39, section 236.Where, however, a Magistrate, presuming to act under that sub-section, makes an order clearly ultra vires, such order iB notprotected by the provision against appeal. In the present casethe Magistrate fined the wrong man. The Police Sergeant wasliable to be condemned in Crown costs, and not the appellant.Then, as to the order for compensation, that order can only bemade as a case instituted on complaint, meaning a case fallingunder sub-section 1 of section 152; but the present case cameunder sub-section 2.
Tirundvukkarasu heard contra.
4th March, 1896. Bonser, C.J.—
In this case the appellant was ordered to pay Rs. 5 as Crowncosts, in default fourteen days’ imprisonment; and he was furtherordered to pay Rs. 10 compensation to the accused, and in defaultfourteen days’ imprisonment. These orders were made undersection 236 of the Criminal Procedure Code, on the ground thatthe case was false and vexatious. Now, section 236 only appliesto cases “ instituted on complaint,’’ and therefore we have to findout what is the meaning of a case instituted on complaint.
If we refer to section 152 of the Code, it will be seen that thereare several ways of instituting proceedings in a Police Court.The first is on a complaint being made by any pereon to a PoliceCourt that an offence has been committed over which the Courthas jurisdiction ; the second is, on a formal written report beingmade to a Police Court by a police officer to the like effect.Complaint is defined in the interpretation clause (section 3 a)^to mean “ the allegation made orally or in writing to a Policeu Magistrate with a view to his taking action under the Code“ that some person, whether known or unknown, has committed“ an offence.” Was this present case instituted on a complaint ?The appellant did not go to the Police Court to make any allega-tion, either orally or in writing, to a Police Magistrate. Whathappened was this. He went to the Slave Island police stationand told his story to the police sergeant on duty, charging theaccused with an offence within the jurisdiction of the PoliceCourt of Colombo. The sergeant did not refer him to the PoliceCourt of Colombo, as h8 might have done, but he adopted thecharge made by the appellant and made a formal written reportto the Colombo Police Court. It iB clear from this that the
Bohbeb, C.J
1896.3farc 4.
Bonseb, C.J.
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prosecution is not one instituted on a complaint, bnt that it wlaa prosecution instituted on a formal written report by a policesergeant. That being so, the Police Magistrate had no jurisdic-tion to order the appellant to make compensation to the accused.
Then, as to Crown costs, the 3rd sub-section of section 236 providesthat “ if in any case inquired into or tried before a Police Magistrate“ under this chapter the complaint be not proceeded with within“ such time as the Police Magistrate may deem reasonable, or if“the complaint is declared by the Police Magistrate to have“ been frivolous or vexatious, it shall be lawful for such Police“ Magistrate to make an order for the complainant to pay by“ way of Crown costs a sum not exceeding Rs. 5,” &c.
Now, we have seen already that this appellant made no complaintbut that the prosecution was commenced on the formal writtenreport of the police officer. If anybody was the complainant^it was the police sergeant; and if anybody should havebeen called upon to pay costs, it was the police sergeant, whorushed into Court with a case which the Magistrate declared to befrivolous and vexatious. The reason why the order to paycompensation to accused is restricted to cases instituted oncomplaint, is obvious. It was not thought necessary to deal withcases instituted on formal police reports, because it was assumedthat the police would not institute cases without having previouslymade due inquiry and satisfied themselves that there was a real,substantial case which ought to be dealt with by a Police Court.If the result of the inquiry made by the police is to leave roomfor doubt, whether the case is not a frivolous one, they should referthe informant to the Police Court, and not take upon themselvesthe responsibility of instituting a case of the bona jides andmerits of which they are not satisfied.
The order must be discharged.