125-NLR-NLR-V-51-RANASINGHE-Appellant-and-JUSTIN-Respondent.pdf
616
BASNAYAKE J.—Ranaeinghe v. Ju*tin
1949
Present: Basoayake J,RANASINGHE, Appellant, and JUSTIN, Respondent8. C. 82—M C. Colombo, 45,360
Criminal Procedure Code—C/targe of retaining stolen property—Accused
acquitted—Property relumed to complainant—Right of appeal—Sections
413 and 336.
Accused was charged with dishonestly retaining a stolen wirelessset belonging to the complainant. Accused was acquitted but theMagistrate being satisfied that the wireless set had been stolen from thehouse of the complainant ordered its return to him.
Held, that the accusod had no right of appeal from that order.
Held, further, that tho order was correctly made under section 413of the Criminal Procedure Code.
Silva v. Hamid {1918) 20 N. L. fi. 414 followed.
i^PPl'iAL from a judgment of the Magistrate, Colombo.
N. M. Je Silva, for accused, appellant,.
M. M. Kumaraknlasingham, for complainant respondent.
March 1, 1949. Basnayake J.—
The appellant was charged with the offence of dishonestly retaininga stolen 0. E. 0. wireless set bearing No. 816,081 and two loud-speakers1 Perera v. Thclenit Peries, 6 S. C. C. 133.
510
BA6NAYAKE J.—JJanosinjjfce t. Ju*tn
hereinafter referred to as the stolen wireless set), property of PathirageDon Justin of Etui Kotte, knowing them to be stolen property, andthereby committing an offence punishable under section 394 of thePenal Code. It appears from the evidence of the Assistant Superintendentof Police that a stolen wireless set was found in the boutique of theappellant. His explanation is that it was sent to his brother by one
Wijosinghe, a repairer of radio sets, in place of his own wireless setwhich had been given to Wijesingbe for repairs. He said that he didnot know that the stolen wireless set was stolen property, On thatevidence the learned Magistrate acquitted the appellant and orderedthat the stolen wireless set be returned to the complainant. The learnedMagistrate is satisfied that the wireless set is the property of the com-plainant, and that it had been stolen from his house when it was burgled.The identifying marks which the complainant mentioned to the Policewere found on the stolen wireless set which the appellant had in hispossession. The present appeal is from the order directing that thestolen wireless set be returned to the complainant.
In my view the appellant has no right of appeal from that order. Hedoos not claim the stolen wireless set. He was able to secure his acquittalby disclaiming allit was stolen. He cannot brine
himself within the ambit of section 33/) because the order he is appealingfrom does not fall within any of the appealable orders specified therein.Nor has he a right to come under section 33S which gives a person “ whoshall be dissatisfied with any judgment or final order pronounced by anyMagistrate’s Court or District Court in a criminal case or matter tc wbichhe is a party ”. The order in question has not been made in a criminalcase or matter to which the appellant is a party, for an order undersection 413 can be made only when an inquiry or trial in any criminalcourt is concluded. The appellant was undoubtedly a party to thecriminal case which terminated with his acquittal. But the decisionwhich he now canvasses was made after the conclusion of that caseand the appellant can in no sense of the term be said to be a party towhat took place after his acquittal. In the instant case the appellantwas able to secure his acquittal by disclaiming any knowledge that thestolen wireless set was stolen property. In. his evidence he concededthat it was the property of the repairer Wijesinghe and made no claimto it. However, as I heard the arguments of learned counsel for therespondent and the appellant on the qnestion whether the learnedMagistrate’s order is correct I shall dispose of this matter by way ofrevision under section 357 of the Criminal Procedure Code.
Section 413 (1) of the Criminal Procedure Code empowers a criminalcourt to make such order as it thinks fit for the disposal of propertyproduced before it, regarding which any offence appears to have beencommitted. In the instant case the prosecution rests on the allegationthat the stolen wireless set was stolen property and that in regard toit the offence of theft had been, committed. The evidence establishesthat the stolen wireless set was stolen property and in my view thelearned Magistrate acted correctly in making an order under section 413.
520
GRATIAEN J.—Palasamy Nadar v. LanJctree
My view of that section gains support from the following observationsof Bertram C.J. in Silva v. Hamid :
‘‘ Where property has been stolon, and the charge is made againstthe person for receiving the property so stolen, even though theMagistrate acquits the person charged with so receiving it, he may,if he comes to the conclusion that the property actually was stolen,order it to be delivered to the person from whom it was taken, Anddisregard the possession of the receiver. ”
The order of the learned Magistrate is affirmed.
Appeal dismissed.