029-NLR-NLR-V-12-SABOOR-UMMA-v.-COOS-KANNY.pdf
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Present: Mr. Justice Wendt.
SABOOR UMMA v. COOS KANNY.
P. G., Colombo (Addl.), 8,713.
Maintenance Ordinance, s. 3—Discharge of defendant owing to absence ofcomplainant—Cause of absence—Criminal Procedure Code, s. 194.Where the complainant in a. maintenance case-being absent onthe day of trial (May 9) the defendant was discharged, and thecomplainant subsequently (Deoeraber 17) instituted another com-plaint, and explained her absence on the previous occasion bystating that the defendant fraudulently promised to marry her andto pay her Rs. 100 and thereby induced her to absent herself,—Held that the order of discharge must be considered as anacquittal.
Held, further, that the reason given by the complainant for her. absence on May 9 being satisfactory, the Magistrate had powerto set aside the order of discharge of that date and to regard thepresent proceedings, as a renewal of the former application.
A
PPEAL by the defendant from an order condemning him topay Rs. 4 per mensem for the maintenance of his illegitimate
child. The facts and arguments sufficiently appear in the judgment.
Bawa, for the defendant, appellant.
Tisseveresinghe, for the complainant, respondent.
Cur. adv. vidt.
March 25, 1909. Wendt J.—
The defendant appeals against an order under “The MaintenanceOrdinance, 1889,” directing him to pay a sum of Rs. 4 a monthfor the maintenance of his illegitimate child by the complainant.Besides the question of fact as to the paternity of the child, as towhich I see no reason for disagreeing with the Magistrate’s findingagainst the appellant, two questions were argued before me inappeal, viz., first, the question whether the order made upon theprevious application made by the complainant was a bar to thepresent application; and secondly, whether there was proof that•the application was within twelve months of the child’s birth, orthat the child had been maintained by the appellant within thatperiod. On the first of these questions the facts are that on April 23,1908, complainant made her application, in which she stated thatthe child was six months old, and that for six months the defendanthad neglected to maintain it. When examined by the Court, shestated that appellant had failed to maintain it for ten months (whichEVot. XII.*
im.
March 25.
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1909.
March ZB,Wendt J.
would put the date of birth back to June, 1907). Upon appearingto the summons on the application the appellant denied the pater-nity of the ohild. The trial was fixed for May 9, and the partiesissued subpoenas for a number of witnesses on both sides, but onthe 9th both parties were absent, and the Magistrate made order“ Case struok off.” It is argued by appellant that this order wasequivalent to a dismissal of the complaint, and that the Magistrateought properly to have “acquitted the accused.” No doubt, aspointed out in cases like Eina v. Eraneris1 and Subaliya v. Kantian-gara* the Police Court in proceeding under the Maintenance Ordi-nance is not dealing with a strictly criminal matter., but it is clearfrom sections 15, 16, and 17 among others of the Ordinance that itsprocedure should be regulated by the provisions of the CriminalProcedure Code. Section 194 of that Code enacts that “ If thesummons has been issued on complaint under section 148 (1) (a),and upon the day and hour appointed for the appearance of theaccused, or at any time to which the hearing may be adjourned, thecomplainant does not appear, the Magistrate shall, notwithstandinganything hereinbefore contained, acquit the accused, unless forsome reason he thinks proper to adjourn the hearing of the case to
some other hour or dayProvided that if the complainant
appears in reasonable time and satisfies the Magistrate that hisabsence was due to sickness, accident, or some other cause overwhich he had no control, then the Magistrate shall cancel any ordermade under this section.” With the exception of the proviso, thissection is a re-enactment of section 228 of the Criminal ProcedureCode of 1883, as amended by Ordinance No. 22 of 1890, under whichit was held in Ukku Rala v. David Singho 3 that where a Magistrate“ discharged ” an accused party on the day fixed for trial, thecomplainant being absent, his order amounted to an “acquittal,”which, as the law then stood, could not afterwards be set aside bythe Magistrate himself. “ The Magistrate,” said Withers J., “hadonly the alternatives open to him of acquitting the accused oradjourning the hearing of the case for some other day for somereason he thought proper. He did not adjourn the case that day,but discharged the accused, seeing no reason for adjourning thecase to some other day. He should have acquitted the accused,and I am bound to act as if the order whioh the law required hadbeen made, and to treat the discharge as an acquittal.” In the caseof the analogous section 190 of the present Criminal ProcedureCode, where a Magistrate disbelieving the evidence led for theprosecution “ discharged ” the accused, it was held in Eliatamby v.Sinnatamby4 that the discharge was tantamount to an acquittal.I hold therefore that as the Magistrate in the present case did notBee fit to adjourn the hearing, but “ struck off ” the case, his order
1 (1900) 4 N. L. R. 4.3 (1895) 1 N. L. R. 339.
3 (1899) 4 N. L. R. 121.* (1905) 2 Bal. 20.
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would have amounted to an acquittal in an ordinary criminal case,and that in the present instance the charge being what it is, hisorder amounted to a final determination of it, which, .however, hewould have the power himself to set aside upon the grounds statedin the proviso to section 194.
When the present complaint was presented on December 17, theMagistrate was not asked to set aside his order of May 9. Noallusion whatever was made to- the former proceedings, but theapplication for maintenance, and the Magistrate treating it as suchissued a new summons to the defendant, who upon his appearancepleaded the former order as a bar. Bis counsel stated that thereason of the non-appearance of the parties on May'9 was that theyhad settled the matter out of Court, and he produced a documentD 1 bearing that date, whereby the complainant acknowledged thatshe was unable to prove her case and had therefore not appearedin Court, and she undertook not to “ put the defendant into anydifficulties.” The Magistrate recorded that he did not agree withdefendant’s counsel and would give his reasons later, and heproceeded to hear evidence on behalf of the complainant. In hisjudgment he held that the defendant by fraudulently promising tomarry the applicant and to pay her Rs. 100 induced her to absentherself on May 9, although he had no intention of carrying out eitherpromise. He also held that the order “ struck off ” was not a finalorder. On this point, as I have already indicated, I think he waswrong ; but his finding as to the cause of complainant’s absence onthe day of trial affords good ground for setting aside the final order andhad he taken a different view as to the effect of that order, he wouldno doubt have set it aside. That order being out of the way, thereis nothing to prevent the Magistrate regarding the present proceed-ings (as he has in fact regarded them) as a renewal of the former' application. The delay of seven months in commencing the presentproceedings is explained, as the Magistrate finds, by the deceitpractised by the defendant upon the complainant. I hold there-fore that the application is maintainable, and I agree Vith theMagistrate in deciding against the defendant on the question ofpaternity. The appeal is dismissed with costs (Rs. 21).
Appeal dismissed.
♦
1909.
March 26.
Wenot J.