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MURUGASU v. CHOKKJEN et dL.
P. C., Jaffna, 17,223.
Withdrawal of case—Crown costs—Ordinance No. 22 of 1890, s. 236,subsection 3.,
When a prosecution is withdrawn with the consent of the PoliceMagistrate it is improper to order the complainant to pay Crowncosts.
The offence of criminal breach of trust cannot be compoundedunder section 356 of the Criminal Procedure Code.
rpHE facts of the case appear in the judgment.
No counsel appeared.
7th November, 1896. Withers, J.—
The record of these proceedings has been called for the purposeof satisfying this Court whether the Magistrate’s order therein ofthe 5th August last is a legal or proper order ; if it is neither legalnor proper, to determine what order should be made in the matter.On the 29 th June last one Vedivale Murugasu complained to thePolice Court of Jaffna that two persons named Veliyar Sotam andVeliyar Sadappen did on or about the month of July last, atVannarponne, dishonestly appropriate ten pagodas of gold entrustedto them for making certain articles of jewellery, which it wasalleged that they promised to make and deliver within ten days ofthe date the pagodas were entrusted to them. The complainantwas examined that day, and order was made directing that summonsshould be issued to the defendants. On the 8th July last com-plainant and first accused appeared before the court; the secondaccused was absent though summons had been served on him.On the first accused undertaking to produce the second accusedbefore the Court on the day adjourned for the inquiry, the inquirywas adjourned to the 20th July. All the'parties appeared on thatday, but the matter was postponed because the parties were notready, whatever that may mean in a criminal case.,
The inquiry was accordingly adjourned to the 30th July. Onthat day all the parties agaip appeared, but the case was againadjourned to the 5th August. On the 5th August the partiesappeared before the Court, and.this is the minute of the, orderbrought upon revision: “ Complainant moves to withdraw the case.,
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“ Allowed, and accused acquitted. Complainant to pay Be. 3 for“Crown cost.” The complainant then moved this Court by petition y°oew*er^to discharge that part of the order which direoted him to pay Withers, J.Crown cost. This seemed to me in the circumstances an improperorder, and I accordingly called for the ease, directing that theMagistrate should explain his order if he thought fit.
The Magistrate justifies his order under sub-section 3 of section236 of Ordinance No. 22 of 1890. In his letter of 26th September,
1896, he observes : “ Complainant failed to proceed with and to“ prosecute the case, although he was allowed sufficiently reasonable“ time to do so, and he was therefore liable to pay Crown costs“ under the sub-section referred to.” But no such reason wasgiven making the order at the time it was made, and the Judge’sown minute shows not that this complainant was not ready toproceed with the case within such time as the Magistrate deemedreasonable, but that the complainant moved to withdraw the caseand the Judge allowed the motion. More than that, he acquittedthe accused. Hence in my opinion this order is clearly improper,and' I accordingly discharge it:
The Magistrate was further called upon to explain the otherpart of his order which sanctions the complainant’s withdrawal ofthis case, and acquits the accused. The justification of this partof the order is contained in the Magistrate’s letter to the Registrarof the 12th October last. He regards this withdrawal of the casewith leave as a compounding of the offence, and they came to verymuch the same thing. He submits that section 228, OrdinanceNo. 22 of 1890, allows a Magistrate by implication to permit partiesto compound aJl cases summarily triable before him. This sectionenacts that if the complainant does cot appear on the day appointedfor the attendance of the accused in a case where summons hasbeen issued on complainant, the Police Magistrate shall acquit theaccused unless for some reason he thinks proper to adjourn thehearing for some other day. In other words, he argues that if aMagistrate is permitted to acquit an accused when the complainantdoes not appear, he is permitted when the complainant doesappear in a case within his jurisdiction where summons has issued,to allow the complainant to compound the offence. This isa strange inference, and such an interpretation has only to bestated to be, condemned. The liberty of compounding offencesis to be found in the 356th section of the Criminal ProcedureCode. ’ This section enumerates wjiat offences may be compoundedwith and without the permission of the Attorney-General. Itma^es no mention of the offence of criminal breach of trust,which was the offence charged by the complainant against'
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the two persons before mentioned. Section 356 specially enactsthat no offence not mentioned in this section shall be compounded.The entire order of 5th August is therefore illegal and must be setaside, and a day must be appointed for inquiry into the charge,sufficient notice being given to the parties complainant anddefendant to call such witnesses as they may be advised insupport of the prosecution, and if needs be of the defence.
MURUGASU v. CHOKKEN et al