086-NLR-NLR-V-70-W.-BALAGALLE-Appellant-and-K.-SOMARATNE-and-another-Respondents.pdf
STRTMANE, J.—Balagalle v. Somaratne
382
Present: Slrimane, J.W.BALAGALLE, Appellant, and K. SOMARATNE and another,
Respondents
S. G. 232/67—M. C. Matale, 25023
Criminal Procedure. Code—Disposal of stolen property—Section 419 (1)—Effect of thewords “ entitled to the possession thereof ”,
Where a person, after discovering that stolen property has been sold to him,surrenders the property to the police, the Magistrate has power under section419 (1) of the Criminal Procedure Code to order the property to be handed overto the true owner and not to the person from whom it was taken by the police.
Punchinona v. Hinniappnhamy (60 N, L. R. 518) not followed.
_/.PPEAL from an order of the Magistrate’s Court, Matale.
E. R. S. R. Coomaraswamy, with P. WimalacJiandra, for the Claimant-Appellant.
C. R. Gunaraine, for the Claimant-1st Respondent.
Ranjith Gunatilleke, Crown Counsel, for the Attorney-General.
May 25, 1967. Shumane, J.—
This appeal arises from an order made by the learned Magistrate undersection 419 of the Criminal Procedure Code.
I agree with the submission made by Mr. Guneratne that no appeallies against an order made under that section, but on the application ofMr. Coomaraswamy I have decided to deal with this matter in revision.
One Somaratne the 1st respondent to this appeal was the owner of carnumber EN 7734. Admittedly he was the registered owner under theMotor Traffic Act, and the ear was in Iris possession. While in hispossession, this car was stolen on 16.12.66 and a complaint was made to thepolice. On 28.12.66 this car (with the number plates altered to read asEN 5635) had been sold to one Balagalle, the appellant. The positiontaken up by Balagalle was, that the car was sold to him by some unknownmen one of whom posed as “ Abeyesundere ” the owner of the car. Hesays that soon after his purchase he realised that he had not been given
SIRIMANE, J.—Bcdagalle v. SomarcUne
383
the certificate of registration and his suspicions being aroused, hecontacted the real Abeyesundere and learnt from him that he had notsold car number EN 5635. He therefore handed over this car (EN 7734)to the police. In short, the appellant himself seems to have realisedthat possession of the car by him would expose him to the danger of acriminal prosecution for he realised that he had no claim to possess thesaid car number EN 7734. The police filed no case ; they wereapparently satisfied that the appellant too had been duped by the thieves.The car was produced in court by the police, and an order in regard to itsdisposal sought from the learned Magistrate.
It is conceded that section 419, sub-section (1), is the section underwhich the learned Magistrate was empowered to make an order in these
circumstances. That section enacts that the “ Magistrate shall
make such order as he thinks fit respecting the delivery of such property
to the person entitled to the possession thereof ”. To my mind
it seems quite clear on the admitted facts in this case that the person“ entitled to the possession ” of the car is Somaratne, the 1st respondent.It was argued for the appellant however that when property is takenfrom the custody of a person, the Magistrate has no alternative but to orderthe return of that property to the person from whose possession it wastaken. Reliance was placed for this submission on the case of Punchinonav. Hinniappuhamy1. With great respect I regret that I am unable toshare the view that a Magistrate has no power to order property to begiven to any person other than the person from whose possession theproperty was obtained. My attention was also drawn to the case of
Jayasuriya v. H. WarnaJculasuriya 2. In the concluding part of thatjudgment the same learned Judge (H. N. G. Fernando, J.) said “ Iwould hold that section 419 cannot be utilised by a ‘ complainant ’ inorder to obtain an order of possession from the Magistrate of any articleseized from the possession of another as being stolen property, if theother person denies the theft and claims the property as his own ”. In thiscase there is no denial of the theft but on the contrary the appellanthimself had realised that the car sold to him was a stolen one, and that hehimself had no right to possess it.
While I agree that a Magistrate’s Court should not be turned into aforum for the settlement of civil disputes, yet, a Magistrate making anorder under section 419 must exercise his judicial discretion in ascertainingthe person entitled to possession. In doing so the Magistrate, inmy opinion, may order that property produced before him be handed overto a person other than the person from whom it was taken. No doubt in
* (2959) 60 N. L. R. 518.
* (1958) 61 N. L. R. 189.
384
SIRIMANE. J.—Balagalle v. Somaratne
the large majority of cases that come before the Magistrates’ Courtsthe correct order would be to return the property to the person from whosepossession it was taken, as the Magistrate’s Court does not decide civilrights. But there can be cases, such as this, where there are specialcircumstances which would render such a course unjustifiable. In thecase of Sugathapala v. J. K. Thambirajah1, where the facts were verysimilar to those in the instant case, this Court made order that the carfound in the possession of one Thambirajah should be handed to oneSugathapala. The decision in William v. Silva 2 also supports my view.
In my view the Magistrate was right in making order that the carshould be returned to the 1st respondent, Somaratne. The appeal isre ected, and the application in revision refused.
Appeal rejected.Application refused.
1 (1064) 67 N. L. R. 91
* (1921) 22 N. L. R. 403.