May 28, 1920. Dias A. J.—
This is an appeal by. the complainant, with the sanction of theAttorney-General, against an order by the Police Magistrate ofColombo refusing process in a case of hurt under section 314 ofthe Penal Code preferred by him against one Mr. French. Thecomplainant stated his case on oath, and described that on a certainday he went to the shop, of which the accused was the manager, tobuy some articles, and he accidentally hit against a pot of jam andbroke it. He wag a customer of that shop, and asked the assistantto debit the cost of the jam pot to his account, but the managercame along, hit him on the face with his hands, and asked himwhat business he had there. That statement disclosed the offenceof causing hurt, but the Magistrate refused to issue process becausethe complainant had no marks on his face, and remarked that thecomplainant had not even a scratch, and that the matter was triflingand frivolous. The offence under section 314 of the Code does notrequire marks to be left on one’s face before he can appeal to theMagistrate to give him redress. If what the. prosecutor stated'was true, and not justified by any extenuating circumstances, anoffence under section 314 was certainly disclosed, which ought tohave been investigated. The Magistrate appears to have justifiedhis refusal under section 88 of the Penal Code, which says thatnothing is an offence by reason that it causes, or that it is intended tocause, or that it is known to be likely to cause, any harm, if thatharm is so slight that no person of ordinary sense and temperwould complain of such harm. But I do not think this Magistratewill agree that if he went into a shop and accidentally broke a jam-
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pot and had his face smacked, leaving no marks, that he oughtnot to complain, because no harm had been caused to him, orbecause a person of ordinary sense and temper would not resentsuch a liberty. It is perfectly clear that this is a case which requiredinvestigation, and the oase will be sent back to the Magistrate toissue process and for investigation in due course.
Sent back.
Silva v.French: