038-NLR-NLR-V-21-POLICE-OFFICER-v.-DINESHAMY-et-al.pdf
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Present: Schneider A.J.
POLICE OFFICER v. DINESHAMY et at.
544 to 546—P. G. Balapitiya, 46,479
Binding over to keep the peace—Criminal Procedure Code, s. SI—Threefactions—One proceeding—Joinder of parties.
Persons belonging to three factions, and -./hose defences weredistinct, were called upon to show cause why they should cot bebound over to keep the peace in one proceeding.
Held, that this was irregular.rjiHE facts appear from the Judgment.
1919.
Zoysa, for appellants.
July 28, 1919. Schneider A.J.—
This is an appeal by the first, third, and sixth accused against anorder made under section 81 of the Criminal Procedure Code directingthem to execute a bond to keep the peace for a period of six months.
1 (1918) 20 N. L. B. 338.
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1MB.
A. J.
PoUoTvffl*. Dineeha
The proceedings in the case start with a record to the effect thatsix persons are present who are described as the accused. Thenone Jayawardene is called. He is said to be the “ B. K. C. E.Balapitiya, ” by which I understand he is the Becord-keeper of theCourt of Bequests of Balapitiya, and he is said to have produceda case. There is nothing to show why that record was produced.There is further evidence Galled. There is no journal entry in thecase, and there is nothing on the record to show how the proceedingscame to be initiated by the Magistrate. I take it he had informationas required under section 81. If the proceedings were initiatedin that manner, he should have followed the procedure laid down insection 85. From the record I gather that there are three faction^:the first, third, and sixth accused forming one faction; the fourth andfifth another; and the second accused yet another faction. All thesesix persons have been charged, and the proceedings taken againstthem all together. It is quite evident that the accused must havebeen considerably prejudiced, because the defence of the firstaccused is quite distinct from that of the second, while the defenceof the third and sixth are also different from the defence of the otheraccused. It seems to me the proceedings are vitiated by all theseaccused having been called upon to show cause in the one proceeding.
I, therefore, set aside the order as regards the first, third, andsixth accused, who have appealed, but my order is not to prejudiceany proceedings which might rightly be taken against these accusedif the Police Magistrate so desires.
I would invite the attention of the Police Magistrate to the caseof Wickremasuriya v. Don Lewis.1
Set aside.
1 (1915) 1 C. W. R. m.