SWAN" J.—Solomon Perera v. Thomas Fernando
1953Present: Swan 3.'
N. SOLOMON PERERA, Petitioner, and THOMAS FERNANDO,-et al., Respondents
S. C. S62—Application in Revision in M. C. Colombo, 33,031
Search warrant—Disposal of property taken thereunder—Requirement of notice toparties—Criminal Procedure Code, ss. 29, 77, 419.0 ■
Under soction 419 of the Criminal Procedure Code an order for disposal ofproperty brought into Court by an accused person in consequence of the issueof a search warrant can only be made after due notice to both complainantand accused.
•Ai. PPLIC ATION to revise an order of the Magistrate’s Court, Colombo.M. M. Kumarakulasingham, for the complainant petitioner.
H. W. Jayewardene, for the accused respondents.
Cur. adv. vult.
March 9, 1953. Swan J.—
In this case the petitioner charged the respondents with theft of a lorry.The learned Magistrate issued a search warrant returnable on 13.11.1952.On 11.11.1952 the respondents produced the lorry in Court and thelearned Magistrate made order allowing them to keep the lorry pendingtrial on giving security (personal) in a sum of Rs. 1,000.
The petitioner asks this Court to revise the order made by the learnedMagistrate on the ground that it was made without notice to him.Mr. Jayewardene for the respondents contends that notice was un-necessary, that under Section 77 of the Criminal Procedure Code theCourt had to “ impound ” the production, or return it to the accused whoproduced it. I do not think that Section 77 has any application. ThatSection provides for the impounding of documents. In my opinionSection 419 applies ; and the Court should not have made any orderwithout hearing what the complainant had to say. In Costa v. Pieris 1de Silva A.J. held that an order for disposal of property seized undera search warrant could only be made after due notice to both complainantand accused. I think it makes no difference whether the property isseized and produced, or voluntarily brought into Court by the personagainst whom the search warrant has been issued.
. Mr. Jayewardene submits that in view of the affidavit tendered bvthe 2nd accused-respondent I should not interfere. But the facts statedin that affidavit can only be considered at a proper inquiry where bothparties are present. I set aside the order made by the learned Magistrate.The case will be remitted to the lower Court for an order to be made afterinquiry of which notice must be given to both the complainant and theaccused._
Sent back for further inquiry.
1 (1933) 13 C. L. Rec. 73.'
N. SOLOMON PERERA , Petitioner, and THOMAS FERNANDO et al ,Respondents