DE SILVA v. MAMMADU et al.

DE SILVA v. MAMMADU et al.

P. C. Badulla, 8,835.
 

Compensation-Vexatious complaint,-Procedure before punishment there for.

The power given to Police Magistrates of punishing a person for making a vexatious complaint is a very wholesome one, but it must be exercised with great circumspection; and it is only right and fair that, before a person is condemned to pay compensation for instituting a vexatious prosecution, he should be called upon to show cause why he should not be so condemned.

 

A vexatious complaint is one that is brought without cause or for a matter so trivial that no person of ordinary sense or temper would complain of it, with intent to harass the person complained of.

 

THIS was an appeal by the complainant against an order condemning him to pay to the accused, as compensation for vexatious prosecution, Rs. 50. The facts of the case are fully set forth in the judgment.

De Vos, for appellant.

 

30th August, 1897. Withers, J.-

Under section 236 of the amending Criminal Procedure Code, No. 22 of 1890, the appellant has been fined Rs. 50 for instituting a vexatious complaint. There were five accused, so that each received Rs. 10. This was the extreme penalty, and the question is, Did the Magistrate exercise a sound discretion in imposing this fine ? On the 20th July the appellant complained to the Court that a bull belonging to a firm of Moorish traders, which they had entrusted to him, had been stolen three days before. He charged two Moormen and three Sinhalese with the theft of the animal.

At the same time as the complaint was lodged, the Police Sergeant brought up four of the accused before the Court and produced the hide of the stolen bull. The complainant was examined, and his story was shortly this. He had been absent from his village, where the bull was in charge of his cattle-keeper Kaurala or Kiri-banda, and on his return on the 20th July he was told that this bull had been stolen and slaug tered. His brother Kineris and the Police Sergeant gave him particulars, which he embodied in his plaint, and without the least delay he laid his complaint before the Court. The case was tried, and amongst other witnesses his two informants and the cattle-keeper Kiribanda were examined.

The Magistrate did not call upon the accused for their defence. He took a strong view against the case for the prosecution.

He said that, except the fact of the theft and the slaughter of the bull, there was not a word of truth in the case. His reason for fining the complainant was this, to use his words: " The complainant should not have signed the plaint without assuring " himself that there were reasonable grounds for charging the " accused. As it now stands it appears to me a vexatious case, " especially against the third, fourth, and fifth accused." There is no definition in the Code of the term vexatious, but I understand a vexatious complaint to mean one that is brought without cause or for a matter so trivial that no person of ordinary sense or temper (see section 88 of Penal Code) would complain of it, with intent to harass the person complained of. The fact of making a trumpery or a groundless charge would in many cases, without evidence of personal ill-will, raise a presumption of intent to harass. What Bacon wrote on this subject is noteworthy: -" Albeit the party " grieved thereby may have some reason to complain of an untrue " charge, yet that may be not well to call it an unjust vexation."

The power of punishing a person for making a vexatious complaint is a very wholesome one, but it must be exercised with great circumspection. If it is used indiscreetly no one will be found bold enough to prosecute for actual offences.

In the present case there was direct evidence of the theft of the bull by the two first accused, and after inquiry into the matter at the time the constable arrested the first two accused, and the sergeant the third

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