112-NLR-NLR-V-18-WILLS-v.-SHOLAY-KANGANY.pdf
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PnsqtU: De Sampayo J.4®iS.
WU,LS v. &30LAT KAl&GANY.'Statale, 4,836.
Indian esteem , charged with &intfnc£ misappropriation—ABowedhailed
ssi by surety on eon&San that accused should stay with surety—
As md tot working on k‘# estate when out on bail—Accusedrifc '?*& under s. II of Ordinance No. XI of 238$ toilh neglectingto tmib-Jjfleet of bail on contract of servicey^Criminal ProcedureCod. * Warrant in the first instance.
The aaomd, -la esteto kangony, who was charged by his masterwith criminal misappropriationofa sum of Be. 200,was arrested
«nd bailed oat on Jane 25 by a surety who stood bail for him on the•express condition that ha should stay with him. The accused didnot work on the estate from Jane 25, and the superintendent chargedhim, under section 11 of Ordinance No. 11 of 1885, with having failednnd' neglected to work on the estate from June 25 to July 15.
Held, that the accused had a lawful excase, under the circumstances, fornot working an the estate.
Theeffectofgrantingbailisnot to %sat the accused free,but
to release him from the custody of the law .and to entrust him to thecustodyofhissureties,who are hound to producehim ata
specified time and place. The sureties may seine the principal at any timeand discharge themselves by banding him over to the custody of the lawagain.
Theeffectofbail, itnotsomuch to suspend thecontractof
service as to furnish, according to circumstances, a lawful , excusefor not tf&utding to those obligations.
Observations on the impropriety of issuing warrant on insufficientmaterials.
V
Maclean e. Appan Kangcng1 explained.
1J HE foots are set out, in the judgment
Batee, (or complainant, appellant.
No appearance (or respondent.
October 5, 1915. Be Sampayo J.—
The complainant, Mr. Wills, who is the superintendent of Opalgaliaestate, charged Sholay Xangaay, formerly of that estate, undersection^ 11 of the Ordinance No. 11 of 1885, with having failed andneglected to work from Jane 25 up to July 15, 1915. He appeals froman order by which the Acting Police Magistrate acquitted the accused.
1 080® 8 N. L. B. 54.
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iftflfcThe circumstances of the case are unusual* and raise a question
X^Siwlvclaw of a novel character. The ^complainant charged the accused
d- &t, another case with having misappropriated a sum of Bs. 200,Wifc vfi wltiohTiad been given to him as an advance to recruit Coolies:^TheShday * accused was arrested on that charge and brought to Court.' Accord-Kanganyj^o® the evidence of the complainant, the accused was bailed oufc
on June 25«and returned to the estate on June 26, but was not seenon the estate since the later date. How he could be charged withneglecting to. work on the estate'on June 25, I cannot conceive.He returned to the estate in the course of the day on0June 26, buthe does not appear then to have been asked to do any work, andhe apparently came there for a temporary purpose. I cannot seethat the charge, so for as those two days, especially June 25, areconcerned, can in any event be sustained. From the evidence ofMr. Wills, and from the correspondence filed in this case and certainpetitions given to the Police Magistrate, it is apparent that for some*time there was considerable tension between the superintendentand the accused, especially in connection with the matter of theBs. 200 advance. The accused then gave notice to quit on JunO*16, and the superintendent in turn charged him* oh June 20 withcriminal misappropriation of the Bs. 200 and had him arrested.During the period, to which the present case relates, the accusedappears to have been on bail in connection with the previous case ofcriminal misappropriation. The .Magistrate held that during thisperiod the accused must be taken to have still been in legal custody,and that the contract of service was suspended and the accusedcould not be charged with neglecting to work.
The Magistrate relied on the judgment of Bonser C.J. in Macleanv. Appan Kangany.l But in that case the cooly was in the actualcustody of a police officer after arrest, and it was held that hecould not be said to be " in the service of his employer ** withinthe meaning of section 11 of Ordinance No. 11 of 1865. The learnedChief Justice no doubt spoke of the contract of service being sus-pended, but it is evident that he used the expression only for thepurpose and in the sense just mentioned. In this case, though theAccused was not in actual custody, the. Magistrate thought that theaccused had been delivered by the Court to the custody of thebailsman, and that the result, therefore, was the same as if he hadbeen in the custody of the officers of the law. Here, I think, somequalification requires to be observed. The legal significance of“ bail ” is rightly stated by the Magistrate, but I-cannot agree that-when a servant is arrested for an offence and is released on bail heis* in all cases and for all purposes freed from his obligations as aservant. The effect of granting bail undoubtedly is not to set theaccused free, but to release him from the custody of the law and toentrust him to the custody of his sureties, who are bound to produce
I (J$V0) 2 N. L. R. 64.
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him at a specified time add place. See The Laws of England, ' -W*.vol. IX., ‘p. 383, note (r). Under the English law the sureties may d® Samayoseize the principal at any time and discharge themselves by bandkfeJ-
him over to the custody of the law again. Tire law in Ceyloq istwaUev.
just the same in this respect, for the Criminal, Procedure Code.SMag
section 400 (4), gives to sureties this power of arrest. The question,J
however, is, What is the effect of bail upon the accusers obligationsto his employer ? In my opinion, the effect is not so much to suspendthe contract of service, as to furnish, according to circumstances, a' lawful excuse for not attending to those obligations. If, however,the servant on being released on bail goes back to his employer andresumes his work, it cannot be said that pending his .trial his contractof service is suspended, with the result that he is not liable, for suchoffences as neglect or misconduct under the Ordinance No. 11 of1866. But in this case the accused gave evidence .to the effectthat his surety had stood bail for him on the express condition thathe should stay with him, which he accordingly did on his release.
The Magistrate does not discredit .this evidence, and the accused’sstatement, iu view of ail the circumstances, does not appear to me tobe improbable. I think the order of acquittal is justified on thisground, though nob on the ground stated by the Magistrate.
Before disposing of this appeal, I wish .to refer to a part of theproceedings which appears to be extraordinary. The complaintwas presented to Court by Mr. C. Ariya Nayagam, proctor for thecomplainant. It is in a printed form surmounted by the royalcoat of arms. I do not know what right Mr. Ariya Nayagam hasto use the royal coat of arms on his professional documents, but-let that pass. A more serious matter is the evidence on which awarrant was obtained in this case to arrest the accused. On theback of the complaint is also a printed form signed by the com-plainant, and containing some stereotyped statements usuallyrequired to be sworn to for the purpose of obtaining a warrant. Itconcludes with the statement: “ His (accused’s) presence cannotbe secured on summons. ” It is for the Court, and not for thecomplainant, to come to such a conclusion, and for. that purpose thecomplainant must swear to the facts', of which, however, there is anentire absence. At the bottom of the form even the order to bemade by the Magistrate is printed, and the Magistrate in this casehas obediently signed it. The issue of a warrant is a serious matter,and the Magistrate should exercise his own independent judgmenton the facts before he does this judicial act. In every case it is the-duty of the Magistrate to see that the complainant or other person,when giving what purports to be oral evidence, gives it consciouslyand Yith u due sense of his own responsibility,. and that he notmerely adopts general statements already printed and furnished tohim by the proctor. The Magistrate should himself record – thatevidence from the witness’s own mouth, and should in no case
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recognize prin.ted matter contained in forms which the proctor mayXte &AYO keep hi stock. I think the practice followed in this case is repre-fusible* and -X hopft not to see another fhstanee of it.jyjUe ° Bor the reason above given the order appealed from is affirmed.Shilov •
Kanfl°"VAffirmed.