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January 15and 16. TIDORIS v, CAROLIS.
P. C., Balapitiya, 19,572,
Criminal Procedure Code, a. 437—Arrest of accused without sufficient gr- undr —Compenaation to accused—Bight of complainant tc show cause—Appeal*able order.
An order awarding compensation tn accused under section 437 of theCriminal Procedure Code, on the ground of his arrest without sufficientground, is appealable.
Before making an order as to compensation it is the duty of theCourt to give complainant an opportunity to show cause against it.
A complainant cannot be said to have no foundation for arrestingaccused, if tho Magistrate, after hearing the case for the prosecution,hears evidence for the defence and dismisses the charge only on theimprobabilities of the case.
rpiHE constable arachchi of Madampe reported to the PoliceJ- Magistrate of Balapitiya that Gooneratne Tidoris the gate-keeper of Madampe, gave him the information that on the 24th
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” October, 1899, D. Karolis and another broke the window of th9” watch-house of the gate, entered into the house, and when they“ were going away with the property, we went to seize them, they“ attempted to assault me and run away.” He also reported to theCourt that on inquiry made on the spot he “ found this crime" was committed by the accused.”
The Magistrate ordered ” the complainant ” to be cited, togetherwith his witnesses. Summons being served on G. Tidoris, hewas examined, as also other persons, and the Magistrate, indischarging the accused, recorded as follows: —
“ Accused has been arrested at his estate and been brought to" the Court at the instance of the complainant. I find there was no“ ground for his arrtst. I order him to pav accused Rs. 25 as com-** pensation, under section 437 of the Criminal Procedure Code.”
Allan Drieberg, fc appellant.—Appellant did not institutethis case against the accused, but only informed the constablearacbchi of the theft, and the proceedings in Court followed atthe instance of the appellant. There is nothing to show that thecomplaint was false or frivolous. No appearance for respondent.
Cur. adv. vult.
16th January, 1900. Browne, A.P.J.—
I have no note of any appeal decision upon any order ma'deunder the novel section 437 of the Criminal Procedure Code.
In this case the Magistrate inquired into what apparently was anon-summary complaint of offences against section 434 or 437 oftb ? Penal Code, and, after hearing evidence on both sides, dischargedthe accused, because he beldi there werr certain improbabilitiesin the story for the prosecution. He then held, ” I find therewas l, ) ground for the arrest,” and ordered the complainant topay accused Es. 25 as compensation under section 437. Whencomplainant appealed, the Magistrate in forwarding the appealpetition submitted that there was no appeal, inasmuch as therewas no matter of law disclosed.
The comA ensation awrrded, however, was not a sentence of fineor imprisonment and the order awarding it is therefore anappealable one. The principles laid down in 7 S. G. C. 200 apply.
I must set aside this order, because in my judgment, eventhough there is not included in section 437 a clause analogous tothat of 197 (3), yet it must be held that a complainant should begiven opportunity to show cause against the making of the orderere it be pronounced, just as when that clause was not enacted insection 236 of the old Civil Procedure Code it was held in
January 15and 16.
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January 15and 16.
3 N. Jj. R. 3 that the opportunity should be given, which rulingapparently originated the clause (3) in the new section 197.
Moreover, when the Magistrate has not disbelieved the chargeand evidence supporting it absolutely, but in the first instanceproceeded to record evidence for the defence, and finally restedhis dismissal only on improbabilities, I do not concur in his viewthat there was absolutely established no sufficient ground forcausing the arrest.
TIDOEIS v. CAEOLIS