Jayasuriya V. Warnakulasuriya

1958 Present : H. N. G. Fernando, J,

D. JAYASURIYA, Appellant, and H. WARNAKULASURIYA,
Respondent

S. C. 1,174, with Application 92-M. C. Tangalla, 72

    Criminal Procedure Code-Seizure by police officer of property alleged to have been stolen-Power of Magistrate to order delivery of such property to a person- Sections 413, 419.

Section 419 of the Criminal Procedure Code does not afford a means of settling civil disputes. It cannot be utilised by a " complainant " in order to obtain an order of possession from a Magistrate of any article seized from the

possession of another as being stolen property if the other person denies the theft and claims the property as his own. In such a case section 413 is the only provision which can be invoked, and it may be invoked only after the conclusion of proceedings instituted under section 148.

APPEAL, with application in revision, from a judgment of the Magistrate's Court, Tangalla.

A. F. Wijemanne, for the petitioner and appellant.

E. B. Sathrukulasinghe, for the respondent.

Cur. adv. vult.

March 25,1958. H. N. G. FERNANDO, J.-

The proceedings before the Magistrate commenced with an "intimation to Court" of an alleged complaint by the present respondent to the effect that the appellant had removed a fishing boat from the custody of the respondent on 22nd May 1957 and taken the boat to the appellant's land. The "intimation " further stated that there was a dispute between the parties claiming ownership of the boat and, "as the Police apprehended a breach of the peace the boat was kept in the custody of the Village Headman ", and concluded with a request for an order regarding the disposal of the boat. The Magistrate thereafter held a long inquiry at the conclusion of which he held that the boat which originally be. longed to the present appellant had been handed over to Warnakulasuriya the respondent on an agreement and that Warnakulasuriya was entitled to the possession and use of the boat. On this ground the learned Magistrate held that the boat had been unlawfully removed from Warnakulasuriya 's custody and made order that the boat be delivered to him.

The order purports to have been made under section 419 (1) of the Criminal Procedure Code which states inter alia that "The seizure by any police officer of property. . . . . . alleged or suspected to have been stolen. . . . . . . shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the delivery of such property to the person entitled to the possession thereof. . . . . . . "

The principal argument for the appellant has been that the Magistrate has no jurisdiction to order the delivery of the boat to Warnakulasuriya except after the conclusion of proceedings duly instituted in one of the modes prescribed in section 148 of the Criminal Procedure Code.

It is interesting to compare the circumstances of the case of Martin Silva v. Kanapathypillai 1[1 (1939) 14 C. L. W.41.]. There two boutique keepers had both complained to the Police on the same day of the loss of cash from their respective adjoining boutiques. The Inspector of Police discovered cash to the value of Rs. 407 in A's boutique and said that B claimed that money. The money was accordingly brought to Court and retained there. Thereafter the Magistrate recorded that A's proctor moved for the delivery of the cash to A and that B's proctor stated that the money belonged to his client B. The Magistrate then fi.8:ed the respective claims of both claimants for inquiry. At the conclusion of the inquiry the. Magistrate said that the inquiry had been into a complaint by B of theft of property belonging to him and concluded on the evidence that the cash was the property of B and had been stolen from him although the evidence was insufficient to sustain a charge of theft against A. On this ground he ordered the cash to be delivered to B. Abrahams O. J. m

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