1957 Present: T. S. Fernando, J.

G. RETTIAR and others, Appellants, and T. PACKIAM and another
Respondents

S. C. 741-745, with Application 169-M.C. Jaffna, 5,862

    Criminal Procedure Code Section 413-" Produced be/ore the court"-Order for, disposal Of property regarding which an offence appears to have been committed.

At a non-summary inquiry into charges of house-breaking and theft, it was shown that some of the stolen jewellery belonging to the 1st and 2nd claimants had been melted down by two persons, to whom the burglar had given them, into bars of gold and sold to the 3rd to the 7th claimants. The bars of gold were in the custody of court and had been itemized in a list attached to the report to court. During the non-summary inquiry the accused burglar died and the question of his committals for trial did not therefore arise. Thereafter the claims made by the 3rd to the 7th claimants were rejected and the gold was ordered to be handed over to the 1st and 2nd claimants.

Held, that the bars of gold had been produced before the court within the meaning of section 413 of the Criminal Procedure Code and that the Magistrate's order in favor of the 1st and 2nd claimants should be upheld.

APPEALS, with application in revision, from an order of the Magistrate's Court, Jaffna.

C. Ranganathan, for the 3rd to 7th claimants-appellants.

M. M. Kumarakulasingham, for the 1st and 2nd claimants- respondents.

A. E. Keuneman, Crown Counsel, as amicus curiae, on notice issued by the Court.

Cur. adv. vult.

July 2, 1957. T. S. FERNANDO, J.-

These appeals have been preferred by five claimants to certain barf of gold said to have been produced in the Magistrate's Court of Jaffna in connection with a non-summary inquiry into charges of house breaking and theft laid against two persons, Mailvaganam and Thiagarajah. The claims made by the appellants have been rejected and the gold ordered to be handed over to two other claimants said to be the owners of the jewellery which had been melted down to bars of gold. It is conceded by learned counsel for the appellants that his clients have no right of appeal and he invites me to deal with the order made by the learned Magistrate by way of revision. Separate applications in revision have been filed by the appellants, and Fernando J. who allowed notice to issue also invited the assistance of Crown Counsel as 'amicus curiae' when the matter was argued before me I therefore had the assistance of Mr. Keuneman, Crown Counsel, in addition to Counsel on behalf of the contending claimants.

Learned counsel for the appellants urged that the Magistrate's order in favor of the 1st and 2nd claimants should be set aside for the following reasons:-

(1) The bars of gold were not produced before the court within the meaning of section 413 of the Criminal Procedure Code.

(2) There was no evidence before the Court to establish that any offence appeared to have been committed regarding these bar of gold.

For the purpose of deciding the applications in revision it is necessary briefly to set out the facts so far as they are relevant to the question before this Court.

The house of the 1st and 2nd claimants had been burgled on the night of May 16th 1955 and a large quantity of gold jewellery and a fairly large sum in cash were stolen. It is not disputed that the burglars wet Mailvaganam and Thiagarajah. The Police arrested Mailvaganam who admitted his guilt and stated that some of the jewellery was buried in the compound of his mistress's house while the other jewellery had

been given to one Retnam and one Sittampalam to be melted down and sold. Jewellery was found buried in the compound of the house of Mailvaganam's mistress and Retnam and Sittampalam both admitted in evidence during the non-summary inquiry that they had received various articles of jewellery which they had melted down and sold to the 3rd to the 7th claimants who are the presen