Present  : De Sampayo J.  1915.

WILLS v. SHOLAY KANGANY.

1,527-P. C. Matale, 4,236.

Indian labourer charged with criminal misappropriation-Accused bailed out by surety on condition that accused should stay with surety- accused not working on his estate when out on bail-Accused charged under s. 11 of Ordinance No. 11 of 1865 with neglecting the work--Effect of bail on contract of service,-Criminal Procedure Code, s. 400-Warrent in the first instance.

The accused, an estate kangany, who was charged by his master with criminal misappropriation of a sum of Rs. 200, was arrested and bailed out on June 25 by a surety who stood bail for him on the express condition that he should stay with him. The accused did not work on the estate from June 25, and the superintendent charged him, under section 11 of Ordinance No. 11 of 1865, with having failed and neglected to work on the estate from June 25 to July 15.

Held, that the accused had a lawful excuse, under the circumstances, for not working on the estate.

The effect of granting bail is not to set the accused free, but to release him from the custody of the law and to entrust him to the custody of his sureties, who are boned to produce him at a specified time and place. The sureties may seize the principal at any time and discharge themselves by handing him over to the custody of the law again.

The effect of bail is not so much to suspend the contract of service as to furnish, according to circumstances, a lawful excuse for not attending to those obligations.

Observations on the impropriety of issuing warrant on insufficient materials.

Maclean v. Appan Kangany1[(1896) 2 N. L. R. 54.] explained.

THE facts are set out in the judgment.

Bawa, for complainant, appellant.

No appearance for respondent.

October 5, 1915. DE SAMPAYO J.-

The complainant, Mr. Wills, who is the superintendent of Opalgalla estate, charged Sholay Kangany, formerly of that estate, under section 11 of the Ordinance No. 11 of 1865, with having failed and neglected to work from June 25 up to July 15, 1915. He appeals from an order by which the Acting Police Magistrate acquitted the accused.

The circumstances of the case are unusual, and raise a question of law of a novel character. The complainant charged the accused in another case with having misappropriated a sum of Rs. 200, which had been given to him as an advance to recruit coolies. The accused was arrested on that charge and brought to Court. According to the evidence of the complainant, the accused was bailed out on June 25 and returned to the estate on June 26, but was not seen on the estate since the later date. How he could be charged with neglecting to work on the estate on June 25, I cannot conceive. He returned to the estate in the course of the day on June 26, but he does not appear then to have been asked to do any work, and he apparently came there for a temporary purpose. I cannot see that the charge, so far as those two days, especially June 25, are concerned, can in any event be sustained. From the evidence of Mr. Wills, and from the correspondence filed in this case and certain petitions given to the Police Magistrate, it is apparent that for some time there was considerable tension between the superintendent and the accused, especially in connection with the matter of the Rs. 200 advance. The accused then gave notice to quit on June 16, and the superintendent in turn charged him on June 20 with criminal misappropriation of the Rs. 200 and had him arrested. During the period, to which the present case relates, the accused appears to have been on bail in connection with the previous case of criminal misappropriation. The Magistrate held that during this period the accused must be taken to have still been in legal custody, and that the contract of service was suspended and the accused could not be charged with neglecting to work.

The Magistrate relied on the jud