122-NLR-NLR-V-22-WILLIAM-v.-SILVA.pdf
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Present-: Schneider A.J.WILLIAM v. SILVA.
236—P. O. Ratnapura, 16,734.
Disposal of property brought into Court in connection with ten allegedoffence—No offence committed—S. 413 of Criminal ProcedureCodedoes not apply.
Where property is brought into Court as having been, in thepossession of a particular person upon an allegation that an offencehas been committed in regard to such property, and the Court findsthat no offence has been committed, it may order the restorationof the property to the person in whose possession it had beenfound.
Section 413 of the Criminal Procedure Code refers only to thosecases in which there is a oonflict of claims to the property broughtinto Court. In such cases the section provides that the Courtmay make such order as it thinks fit for the disposal of propertyproduced before it, provided (1) the inquiry or trial is concludedbefore it, (2) the property is that regarding which any offenceappears to have been committed or to that which had been usedfor the commission of any offence.
^ I THE facts appear from the> judgment.
Ameresekera, iov appellant.
March 14,1921. Schneider A.J.—
The accused in this case was charged with having broken intothe house of one Don Allis in order to commit theft, and with havingcommitted theft of cash and other property to the value ofRs. 963*81. In the report by the police to Court is given a list ofproductions, in which are included cash Rs. 56*31, two gold rings,a silver watch with a double gold chain with gold coins as pendants,and a bunch of keys. The complainant claimed these productionsas his property which the accused had stolen. The police constableto whom the accused' was given in charge stated in his evidence-in the Police Court that he found these productions in the accused’spocket. In his statutory statement, which was generally to theeffect that the complainant had caused him to be dragged into thehouse with a view.to making a false charge against'him, the accusedstated, inter alia, that; the complainant had searched him and takenfrom him Rs..300 and his “ rings," and later,.referring presumablyto the productions, “ these things were put into my pocket beforeI was arrested.” The effect, therefore, of the' statement is that
1981,
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1921.
Schneider
A.J.
Wtitoim
91. Bihta
the productions were introduced into the accused’s pocket in orderto fabricate a false charge, and that the productions were not theproperty of the accused.
The Magistrate disbelieved the charge, discharged the accused,and directed the productions to be returned to the complainant.While discharging the accused, the Magistrate ordered him toexecute a bond for his good-behaviour.. (Section 82 (b), CriminalProcedure Code.) This was on November 24, 1220. Against theorder to give security the accused appealed, and the order wasset aside by this Court. The decision of this Court was communi-cated to the accused on February 5 last. On the 7th he presenteda petition to the Magistrate praying the Magistrate to order thatthe complainant should return to the accused the said sum ofRs. 300 and “ two rings.” He stated that he had claimed theseas his property in Court. Upon this petition the Magistrateendorsed “ I cannot interfere.” The accused has now appealedfrom that order. Id the fourth paragraph of the petition of appealthe appellant states that he applied to the Magistrate to orderthe property mentioned in the first paragraph of the petition ofappeal, which were found in his possession, to be delivered to him.The property mentioned in the first paragraph of his petition of'appeal is “Rs. 56’31 in cash, two gold rings set with red and bluestones, a silver watch with a double gold chain with three goldcoins, worth Rs. 963*81 in all”—that is the cash and articlesdescribed in the list of productions. But what the appellantclaimed in his petition to the Magistrate were Rs. 300 and two rings.
It is obvious from the facts which I have mentioned that,theaccused did not claim any of the productions, but only stated thatRs. 300 and “ rings,” without specifying the number or giving anydescription, had been removed from his possession by the com-plainant. It is not possible upon the facts to say that theaccused made claim to any of the productions before February 7.Accordingly, at the time the Magistrate made the order that theseproductions should be returned to the complainant, the onlyclaimant to those productions was the complainant.
In his petition of appeal the accused complains that the orderfor the restoration of the property to the complainant should nothave been made. His counsel, on appeal; submitted that on the.authority of the case of Cassim v. Pitiihe1 the order of the Magistratefor the restoration of the property was wrong.
The appeal, it seems to me, is bound to fail for more than onereason. Granting that the order is wrong, the appellant has noright of appeal. Under the facts, he cannot be regarded as a personaggrieved by the order for the restoration of the property, as hehad not claimed the property before the order was made; Thecomplainant was the only claimant at that, time, and upon the
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facts as then before the Court the complainant -was entitled tothe property. The appellant, therefore, has no right of appeal.There is another reason why he has no right of appeal now.' Theorder for the restoration of the property to the complainant wasmade in November, 1920. That is the order from which theappellant should have appealed. Bis petition of appeal was lodgedon February 10. The petition is, therefore, out of time.
Again, in making the order for the restoration of the propertyto the complainant, the Magistrate did not act upon the provisionsof section 413, but upon a well-recognized principle that whereproperty is brought into Court as having been in the possessionof a particular person upon an allegation that an offence has beencommitted in regard tp such property, and the Court finds that nooffence has been committed, it may order the restoration of theproperty to the person in whose possession it had been found.(Kaiha v. Meera,* ThambijnUle v. Ramaswamy2 Dolo&mla v.. EkneUi-godde?) In making such an order the Magistrate may also haveacted under section 419 of the Criminal Procedure Code.
Section 413 of the Criminal Procedure Code appears to me torefer only to those cases in which there is a conflict of claims to theproperty brought into Court. In such cases the section providesthat the Court may make such order as it thinks fit for the disposalof property produced before it, provided (1) the inquiry or trial isconcluded before it, (2) the property is that regarding which anyoffence appears to have been committed, or to that which hadbeen used for the commission of any offence.
This section does not, therefore, apply in this case, for the Magis-trate held that no offence had been committed. The case ofCassim v. Pitehe4 does not support the appellant’s contention,because there the accused had removed the bull under a claim ofright to its ownership. It was taken from his possession. TheMagistrate had acquitted the accused. The Magistrate, therefore,had no right to order the bull to be delivered to the complainantas the accused claimed the animal, and section 413 did not apply.,as no offence appeared to have been committed regarding the bull,nor had it been used for the commission of any offence. '
I would, therefore, uphold the Magistrate’s order for the restora-tion of the property upon the ground that he was entitled to makeit upon the evidence before him that the property belonged to thecomplainant and were in his possession, and that it was not claimedby the appellant. I would dismiss the appeal for this and theother reasons I have given.
Appeal dismissed.
1921.
AJ.
Williamv. 8iha
» {2898) 3 N. L. R. 90.{1909) 4 Bal. Rep. 89.
8 (1922) 7 S. C. D. 37.* 3 C.W. R. 204.