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Present : Maartensz A.J.
THE KING v. ABEYEATNE.C. (Grim.) lialutam, 5,092
District Court—Appeal—Power of District Judge to refuse to forwardpetition of appeal—Criminal Procedure Code, s. 842.
A District Judge is not entitled under section 312 of the CriminalProcedure Code to refuse to forward a petition of appeal to theSupreme Court on the ground that it is filed out of time.
PPLICATION for an order on the District Judge of Kalutaradirecting him to forward to the Supreme Court a petition of
appeal filed in the District Court of Kalutara.. !
October 3, 1929. Maartensz A.J.—
According to the affidavit filed with this application the learnedDistrict Judge refused to admit the appeal filed by the accusedwho was convicted because it was filed two days after the appeal-able time had elapsed. There is nothing in the Criminal ProcedureCode which entitles a District Judge to refuse to forward to thisCourt the record of the case in which an appeal has. has been filedwhether it has been filed in time or not. On the contrary, undersection 342 of the Criminal Procedure Code he is bound to transmitthe record of the case with the appeal and issue notice to theparty in whose favour the judgment or order appeal. against waspronounced.
I would invite the District Judge’s attention to In the Matterof an Application in the Police Court of Hambantota, No-. 4,342, 1in which Bertram C.J. observes that he is unable to see whatjustification the Magistrate has in withholding from the SupremeCourt a petition addressed to the Supreme Court. In that casethe appeal was not forwarded on the ground that no. appeal lay,but this observation would apply equally to the case in which anappeal is not admitted because it is out of time. As observed bythe Chief Justice, it is not for the Police Court to decide whether anappeal lies or not.
I accordingly direct the District Judge to admit and transmitthe petition of appeal with the record in accordance with theprovisions of section 342 of the Criminal Procedure Code, and torelease the accused on his entering into a recognizance as laid downin section 341 of the Criminal Procedure Code. As the accusedis in gaol this order should be transmitted to the District Judgeforthwith.
' 27 A L. if. 187.