043-NLR-NLR-V-12-RAYAPPU-v.-TODD-et-al.pdf
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Present: Mr. justice Wendt and Mr. Justice Middleton.RAYAPPU v. TODD et al.
P: C.. Chavakachrkeri. 16,077.
“ Criminal case or matter ”—Order of restoration to immovable property—Final order—Order of vacation—First order ultra vires—Criminal-Procedure Code, ss. 338 (1), 418, and 419.
The accused were charged with offences under sections 140', 144,314, 409, 433, and 434 of the Penal Code. They were acquittedby the Police Magistrate, who ordered that the first accused beput back into possession of the land in respect of which theoffences were said to have been committed, on the ground that hehad been obliged to quit it by reason of an order made by the Court.Subsequently the complainant’s proctor moved that this order bevacated, on the ground that it was made without jurisdiction.The Court after hearing parties vacated the order. The firstaccused appealed against the latter order.
Held, that the order vacating the previous order was appealableunder section 338 (1) of the Criminal Procedure Code.
Held, also, that the first order was made without jurisdiction,and so was properly vacated by the subsequent order.
A
PPEAL from an order of the Police Magistrate (W. A. Weera-koon, Esq.). The facts sufficiently appear in the judgments.
1 (1899) 1 Q. B. 392.
1909.June 24.
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1909. The appeal came on originally for hearing before Grenier A.J.,June 94. who referred it to a Bench of two Judges. Accordingly the casecame on for argument before Wendt and Middleton JJ.
H. A. Jayetoardene, for the first accused, appellant.
Bawa (with him Wadsworth), for the complainant, respondent.
Cur. adv. wit.
June 24, 1909. Wundt J.—
The question reserved by Grenier A.J. for the consideration oftwo Judges is whether the Magistrate’s order vacating his earlierorder, made under the circumstances to be presently mentioned, isappealable. My brother has also suggested that, in the event ofthat question being answered in the affirmative, we should alsodetermine the question whether the Magistrate had jurisdiction tomake the first order.
The complainant Rayappu charged the appellant, Mr. Todd, anda number of others with having broken the fence of, and enteredinto, Ptithukadu estate and committed offences punishable undersections 140, 144, 314, 409, 433, and 434 of the Penal Code. Inhis evidence complainant deposed that Mr. Todd with his wife andchildren and servants were in the estate bungalow, which they hadtaken possession of on the occasion in question. The Magistratetook non-summary proceedings against the accused (thirteen innumber). In the end he discharged all the accused, holding thatthe entry had been made in the assertion of first accused’s bona fideclaim of title to the estate. In his order of discharge dated March 20,1909, tire Magistrate said : “ The accused hqve now quitted theestate, but this they did not by their own choice, but of necessity.My order requiring first accused to give bail in Rs. 1,000 cashsecurity contributed towards this result. I think, therefore, that.it would be but fair that I should see that accused are put backin the estate. I direct the Maniagar to take the accused and goand leave them in the estate, exactly where they were before theywere obliged to quit the estate.” It appears that on first accusedsurrendering on February 16, the Magistrate ordered him to findRs. 1,000 cash security for his enlargement on bail; thereupon hisproctor moved that he be released on personal bail. The Magistratesaid he would consider this motion if and when first accused quitted• the estate. The accused immediately undertook to quit. Nextday the Maniagar reported that the accused had quitted the estatewith his wife and family, and the Magistrate thereupon releasedhim on personal bail of Rs. 100. On April 3 first accused’s proctormoved that the order directing that the accused be put back in theestate be carried into effect, by police assistance if necessary, butcomplainant’s proctor contended that the order was ultra vires,and moved that the Court do vacate it, as it was made withoutjurisdiction. After hearing counsel on both sides the Court held
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that the order had been made without jurisdiction, -and thereforevacated it, and disallowed the accused’s motion of April 3. Thefirst accused appeals, and prays that the order of April 17, vacatingthat of March 20, be set aside, and the earlier order declared validand operative.
Appellant admits that if a right of appeal exists against theMagistrate’s order, it has to be gathered from the terms of section338 (1) of the Criminal Procedure Code. This section enacts that,subject to the provisions of the last, three preceding sections,which deal with appeals against convictions and acquittals, “ anyperson who shall be dissatisfied with any judgment or final orderpronounced by any Police Court or District Court in* a criminal caseor matter to which he is a party may prefer an appeal to the SupremeCourt against such judgment for any error in law or in fact.” Therespondent argued that the order now under appeal was not madein a criminal case or matter, but I am clearly of opinion that itwas. It purports to vacate a previous order, which was made bythe Magistrate himself in finally disposing of a criminal prosecution,and which was as much “ pronounced in a criminal case or matter ”. as that final order itself. It relates to the possession of propertywhich was concerned in the commission of the offence the Court,was inquiring into. I do not think it was the intention of theLegislature to limit appeals strictly to judgments and ordersdetermining prosecutions, such as convictions, acquittals, anddischarges. In previous cases in this Court touching the questionnow under consideration recourse has been had to the interpretationput by the English Courts upon the words “ criminal cause or matter ”in section 47 of the Judicature Act of 1873. The words there occurnot in an enactment granting the right of appeal, as in our section338, but in an enactment prohibiting appeals. The Court of Appealregarding itself as “ constituted for the hearing of appeals in civilcauses and matters ’’.held that the words “ criminal cause or matter ”“ should receive the widest possible interpretation. The intentionwas that no appeal should lie in any criminal matter in the widestsense of the term ” (per Lord Esher, M.R., in ex parte Woodhallx).Accordingly it was held that no appeal lay from an order to taxcosts in a criminal information for libel (R. v. Steel '1) or fromrefusal of certiorari to quash a summary conviction by Justices,Regina v. Fletcher.3 Our Supreme Court is constituted for the“ correction of all errors in fact or in law committed by any PoliceCourt ” (section 39, Ordinance No. 1 of 1889), and there is thereforenot the same reason as actuated the English Court of Appeal togive the widest, interpretation to the words limiting the right ofappeal. Respondent’s counsel relied upon the local case of Guna-sekera v. Jayaratna 4 and The King v. Mack.6 In the former case the
1 20 Q. B. D. 83S.3 2 Q. B. D. 43 ; 49 L. J. M. G. 4.
*2Q.B. D. 37 ; 46 L. J. M. G. 1.* (1905) 3 Bal. 154,
» (1905) 3 Bal. 194.
1909.June 24.
Wendt J.
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1909.
June 24.
Wendt J.
appeal was from an order declaring that appellant had forfeited hisbond conditioned for the appearance in Court of an accused personto answer the charge against him. Pereira A.J., who pronouncedthe principal judgment in the case, cited B. v. Steel and Ex parteWoodhaU, but pointed out that they did not avail the appellant,because he was not a “ party ” to the prosecution in which theorder he complained of was made. The same obstacle does notbeset the present appellant. In The King v. Mack1 the appeal wasagainst an order under section 419 of the Criminal Procedure Codemade by a Police Magistrate, to whom the court of trial had undersection 414 delivered certain movable property which had beenproduced before it at the trial. The appellant was not a party tothe prosecution, and the proceeding to which he was a party, viz.,that relating to the delivery of the property, was held not to be acriminal case or matter. The present appellant was a party to thecriminal case in which the order he appeals against was made.
For the foregoing reasons I think that the appeal lies. The secondquestion reserved for our consideration therefore arises. The onlyprovision of the Criminal Procedure Code which empowers a Magis-trate to make order as to the possession of immovable property issection 418, but that power is not exercisable except when a personhas been convicted of an offence attended by criminal force and someperson has been dispossessed by such force. In the present case therehas been no conviction, and the first accused was not dispossessedby force, but. quitted the land voluntarily. The Magistrate wastherefore right in holding that hi3 order had been made withoutjurisdiction. I think the appeal should be dismissed.
Middleton J.—
Although I think it probable the order appealed against in thiscase was not such a final order in a criminal case or matter as theframers of section 338 contemplated when they drafted that section,I agree it was unquestionably made iti a criminal matter, and wasundoubtedly final in vacating a previous order made, as I hold,subsequently ultra vires. If the appeal had been against the orderwhich has been vacated by the Police Magistrate, I have somedoubts that such an order could be considered a final and conclu-sive decision.
I agree also with my brother that the original order made by theMagistrate and vacated by him by the order appealed against wasultra vires. It was laid down in The Attorney-General v. Hotham(Lord)2 that where a limited tribunal takes upon itself to exercisea jurisdiction which does not belong to it, its decision amounts tonothing, and does not create any necessity for an appeal.
Appeal dismissed,
i (1905) 3 Bal. 194,■ Turner and Bussell 219; 3 Russell 415-