Attorney General V. Karunaratne

1960 Present  : T. S. Fernando, J.

THE ATTORNEY-GENERAL, Applicant, and P. KARUNARATNE

and another, Respondents

S. C. 204-Application in Revision in M. C. Matale, 6,402

Appeal-Revision-Charge of causing hurt to a public servant to deter him from discharging his duty-Conduct of public servant without lawful authority-Acquittal of accused although guilty of minor offence of causing hurt-Failure of Magistrate to exercise his discretionary power to convict of minor offence-Remedy of prosecution-" Error in law or in fact"-Penal Code, ss. 323, 34, 314, 343-Criminal Procedure Code, ss. 129 (7), 183, 330 (1), 338, 357 (3).

By section 183 (1) of the Criminal Procedure Code-

" When a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete minor offence and such combination is proved but the remaining particulars are not proved he may be convicted of the minor offence though he was not charged with it."

Held, that, if a Magistrate acquits the accused without exercising the discretionary power vested in him under section 183 (1) to convict the accused of the minor offence, the Attorney-General is not entitled to appeal from the order of acquittal, inasmuch as the failure to exercise a discretion vested in the Court does not constitute an " error in law or in fact " within the meaning of section 338 (1) of the Criminal Procedure Code. In such a case, however, the Supreme Court may exercise its revisionary jurisdiction.

APPLICATION to revise an order of the Magistrate's Court, Matale.

V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General. S. B. Lekamge, for the accused-respondents.

Cur. adv. vult.

August 2, 1960. T. S. FERNANDO, J.-

This application by the Attorney-General to revise the order made in this case in the Magistrate's Court came to be made in the following circumstances.

The two persons accused were charged in the Magistrate's Court with the commission of the offences described below :-

(1) The 1st accused, for causing hurt to one R. W. Bandaranayake, the Village Headman of Attipola when the latter was engaged in the discharge of his duty-section 323 of the Penal Code ;

(2) The 2nd accused, for abetting the 1st accused in the commission of the offence above described-section 323 read with section 102 of the Penal Code ;

(3) Both accused, for using criminal force on the said Headman when the latter was engaged in the discharge of his duty-section 344 of the Penal Code.

The facts as accepted by the learned Magistrate were as follows :-

Bandarayake is the Village Headman of Attipola, and on 3rd September 1959 at about 6.30 p.m. a complaint was made to him by one Asoka Aluvihare that the 1st accused had abused him and that later the 2nd accused who is the brother-in-law of the 1st accused had come to his house and threatened him. After recording this complaint, the Headman in the company of Aluvihare, the complainant and another person, a villager, went along to the house of the 1st accused who happens to be a relative of the Headman. The latter went up to the 1st accused who was in the garden-the time was about 7 p.m. then-and explained to him the nature of the complaint. The 1st accused thereupon abused the Headman, calling him a son of a whore, and inquired whether he had taken sides in the matter. The abuse was followed up with blows aimed by the 1st accused on the back and right shoulder of the Headman. The 2nd accused who had been with the 1st accused at the time held the Headman in such a way that he was unable to retaliate or defend himself, and, while so held by the 2nd accused, the 1st accused dealt more blows on the headman. At a certain stage all three persons (the headman and the two accused) fell on the ground at which moment the 1st accused caused an injury to the sexual organ of the Headman.

In spite of the acceptance of the evidence of the wi

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