Attorney General V. Alwisappu

1954 Present. Gunasekara J.

ATTORNEY GENERAL, Appellant, and T. H. ALWISAPPU,
Respondent

S. C. 1,343-M. C. Galle, 6,135

Land Development Ordinance (Cap. 320)-Prosecution thereunder-Right of for4tt officer to institute it-Sections 3-6,168 (2)-Criminal Procedure Code, . 148 {1) {b).

There is nothing in the Land Development Ordinance to prevent a range forest officer from availing himself of the provision of section 148 (1) (b) of the Criminal Procedure Code in order to institute a prosecution for an offence punishable under that Ordinance.

APPEAL from a judgment of the Magistrate's Court, Galle.

A. E. Keuneman, Crown Counsel, for the Attorney-General.

No appearance for the accused respondent.

Cur. adv. vult.

August 27, 1954. GUNASEKARA J.-

The Attorney-General appeals against an order made by the magistrate of Galle discharging the respondent who was charged before him. with an offence punishable under section 168 (2) of the Land Development Ordinance (Cap. 320).

A written report to the effect that the respondent had committed such an offence on the 22nd May, 1952, was made to the magistrate by a range forest officer on the 29th July, 1952. It purported to be made in terms of section 148 (1) (b) of the Criminal Procedure Code, and the magistrate ordered the issue of a summons to the respondent. The summons was issued on the 12th August and served on the respondent, and he appeared in obedience to it on the 21st August. On that day the statement of the particulars of the offence contained in the summons was read to the respondent as the charge, and he pleaded not guilty. The trial was postponed to the 5th November. The respondent failed to appear on that day and a warrant was issued for his arrest. He surrendered to the court on the 10th December and the magistrate ordered that the case should be " called " on the 18th December.

In the meantime, on the 25th October, 1952, the range forest officer had submitted to the magistrate a second report, which too purported to be a report in terms of section 148 (1) (b) of the Criminal Procedure Code. He described it in a covering letter as an amended plaint. On the 18th December the respondent was again charged and he pleaded, not guilty. The record of that day's proceedings reads :

" Accd : T. H. Alwisappu-pt.

Vide fresh plaint filed on 25.10.52.

Charged from Ss.

' I am not guilty '

Trial for 12.3-Cite prosecution witnesses. Warned to appear. "

The summons from which the respondent was charged on this day could, only have been the one that was issued on the 12th August, 1952, for no other summons had been issued.

When the case was taken up for trial on the 12th March, 1953, a proctor appearing for the respondent submitted that a forest officer had no

authority '"to take any proceedings under the Land Development Ordinance ". The learned magistrate heard argument on the question -so raised and made order discharging the respondent.

The Land Development Ordinance assigns to various officers various powers, functions and duties, but none of these relate to the institution of prosecutions. The ground on which the learned magistrate discharged the respondent is that " under sections 3-6 of the Land Development Ordinance only such officers as are contemplated therein can institute proceedings under the Land Development Ordinance.", and a range forest officer is not one of them. But the institution of a prosecution is not a proceeding under this ordinance. It is a proceeding under the Criminal Procedure Code, even though the offence alleged is a contravention of a provision of the Land Development Ordinance. The Criminal Procedure Code provides that proceedings in a magistrate's court shall be instituted in one of the ways prescribed in section 148 (1) of that Code, and there is nothing in the Land Development Ordinance that qualifies this provision. The proceedings in the present case were in

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