023-SLLR-1984-V1-EDIRISINGHE-v.-WEERARATNE-AND-OFFICER-IN-CHARGE-MONERAGALA-POLICE.pdf
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Edirisinghe v. We/eraratne
173
EDIRISINGHE
v.WEERARATNE AND OFFICER-IN-CHARGE,MONERAGALA POLICE
COURT OF APPEAL.
THAMBIAH, J. ANO MOONEMALLE, J.
C A. 1888/79 – M. C. MONERAGALA 8157.
FEBRUARY 13, 1984.
Code of Criminal Procedure Act. No 15 of 1979 – Scope of section 66 (1).
The accused 1st respondent had dishonestly withdrawn funds from the bankaccount of the Siyambalanduwa Matiwela Siri Parakum Co-operative Farm and hadcredited it to his private bank account. The balance of those funds lying to the creditof the accused 1st respondent at his Bank was listed in the list of productions in thecase.
The prosecution made an application under section 66 (1) of the Code of CriminalProcedure Act, No. 15 of 1979, for the issue of summons on the Manager of theBank to produce in Court the balance sum or to freeze the said account.
The Magistrate refused the application.
Held –
1 The provisions of section 66 (1) of the Code of Criminal Procedure Act are notrestricted to a trial only but extend to any proceeding by or before the Magistrate'sCourt.
2. The order of the Magistrate refusing to issue summons on the Bank undersection 66 (1) is not an appropriate order as then the accused will be able to enjoythe fruits of his crime. Justice requires that the bank account of the 1staccused-respondent should be freezed till the conclusion of all the proceedings inthis case.
Cases referred to
(1) Samaraweera v. Officer-in-Charge C.F.B. andA.G.. (1976) 78 N.L.R. 385.
121 In Re Jayakody. (1955) 58 N.L. R. 236.
Sri Lanka Law Reports
174
[1984] 1 Sri LR.
APPLICATION for revision of Order of the Magistrate's Court of Moneragala.
D S Wi/esinghe for the petitioner.
A A de silva with K. Thiranagame for the respondent.
March 9, 1984.Cur adv- vult-
MOONEMALLE, J.
This is an application for revision of an order made by the learnedMagistrate of Moneragala in proceedings in which the accused 1 strespondent was charged with offences of theft, forgery and criminalmisappropriation. According to the report of the Officer-in-Charge,Moneragala Police Station, filed in the Magistrate's Court whichforms part of the record, the allegation was that the accused 1 strespondent, while he was the Secretary of the SiyambalanduwaMatiwela Siri Parakum Co-operative Farm had dishonestlywithdrawn Rs. 35,000 from the bank account of this Co-operativeFarm and had credited the same to his private account at theSiyambalanduwa Branch of the Bank of Ceylom Of this sum of Rs.
the accused 1st respondent had withdrawn Rs. 9,000.The sum of hs. 29,000 was listed in the list of productions. Theprosecution made an application under section 66 (1) of the Codeof Criminal Procedure Act, No. 15 of 1979, for the issue ofsummons on the Manager, Bank of Ceylon, Siyambalanduwa toproduce in Court the balance sum of Rs. 29,000 lying to the creditof the accused 1 st respondent's account or order the Manager tofreeze the said account. The learned Magistrate made orderrefusing this application. The present application in revision is fromthis order.
Learned Counsel for the petitioner submitted that the provisionsof section 66 (1) of the Code of Criminal Procedure Act, No. 15 of1979, were wide enougn to cover the present matter in issue andthat otherwise, the accused 1 st respondent will be left free to enjoythe fruits of his crime, and would render the provisions of section425 (1) of the Code of Criminal Procedure Act nugatory. He citedthe case of Samaraweera v. Officer-in-Charge C.F.3. and A.G. (t) insupport. Learned Counsel for the accused 1st respondent on theother hand, contended that section 66 (1) entitled goods stolen tobe brought to Court only if they are necessary for the purpose ofprosecuting the charges. Therefore, he submitted that it was notincumbent on the learned Magistrate to order the Rs. 29,000 to bebrought to Court. He also submitted that section 66 (1) had noapplication to proceedings under section 425 (1). He cited thecase of In Re Jayakody (2) in support of his submissions.
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In the case of Samaraweera v. 0.1.C. (C.F.B.) and A.G. (supra).>the facts were that a sum of Rs. 25,000 deposited by the suspectpetitioner to open a bank account was admittedly proceeds of saleof grey sheeting which the prosecution alleged was stolen propertywithin the meaning of section 393 of the Penal Code. The chargeagainst the suspect petitioner was one of cheating. During theinvestigations, on an application made by the police, the Magistratemade order directing the Bank to freeze the account of the suspectpetitioner until the disposal of the case. An application in revisionagainst that order was filed. Sirimanne, J. who delivered judgmentin that case, after considering sections 74 (1), 96, 133 (1) and262 of the Administration of Justice Law which was the lawapplicable at the time, held that the learned Magistrate's order wasa lawful and appropriate order, although there was no specialprovision of law conferring a general power on a Magistrate tomake orders freezing the bank account of any person. He was of theview that the facts of that particular case were so compelling as towarrant the making of such an order in view of the powersconferred on Magistrates by sections 74 (1), 96, 133 (1) and 262of the Administration of Justice Law.
Section 74 (1) of the Administration of Justice Law required aMagistrate to assist the conduct of an investigation by making andissuing appropriate orders and processes of Court. Similarprovisions are found in section 124 of the Code of CriminalProcedure Act, No. 15 of 1979. The provisions of section 96 of theAdministration of Justice Law which empower a Court to order thesearch and production of stolen property or of property unlawfullyobtained which are concealed, kept or deposited in any place aresimilar to the provisions found in section 70 of both the Code ofCriminal Procedure Act and the old Criminal Procedure Code.Section 133 (1) of the Administration of Justice Law reads thus :“ Whenever any court considers that the production of anydocument or other thing is necessary or desirable for thepurposes of any proceeding by or before such court it may issue asummons to the person in whose possession or power suchdocument or thing is believed to be, requiring him to attend andproduce it or to produce it at the time and place stated in thesummons. ”
These identical provisions are found in section 66 (1) of the Codeof Criminal Procedure Act and section 66 (1) of the old CriminalProcedure Code.
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Sri Lanka Law Reports
[1984} 1 SriL.R.
Similarly, section 262 of the Administration of Justice Law whichprovides for the disposal of property after trial is concluded, defines «the property in subsection (3) regarding which an offence appearsto have been committed to include also 'any property into or forwhich the same may have been converted or exchanged,' finds itscounterpart in section 413 of the old Criminal Procedure Code, aswell as in section 425 of the Code of Criminal Procedure Act.
In the case of fn Re Jayakody (supra) the allegations in the plaintwere that the 1 st accused committed criminal breach of trust of anelephant valued at Rs. 7,000 and that the 2nd accused aided andabetted the 1 st accused. On an application made by the police, theMagistrate made order under section 66(1) of the old CriminalProcedure Code to issue summons on the 2nd accused to producethe elephant. In an application in revision, it was contended that theMagistrate had no jurisdiction to order the elephant to beproduced. It was held that section 66 (1) provides that wheneverany Court considers the production of any document or thingnecessary or desirable for any proceeding, summons may issue:Basnayake. C. J. who was then A.C.JJn the course of his judgmentstated ' It is clear no such order can be made unless Courtconsiders the production of the document or thing necessary. TheCourt can consider the production is necessary or desirable onlyupon material properly placed before it. Here, there is no materialon/record why it was necessary or desirable that the elephantshould be produced for the purpose of trying charges against theaccused. In the absence of such material the order cannot besustained. '
In the instant case before us, there was material on record (thereport of the officer-in-charge, Moneragala Police Station) for theMagistrate to consider and form an opinion whether it wasnecessary or desirable that the Rs. 29,000 should be produced.Basnayake, A, C. J. considered the applicability of the provisions ofsection 66 (1) of the old Criminal Procedure Code only inconnection with that particular! trial. He did not consider theprovisions of section 70 which deals with the search andproduction of stolen property or the provisions of section 413which provides for the disposal of property after trial is concluded.On the other hand, Sirimanne, J. in the case of Samaraweera v.
1.C. (C.F.B.) andA.G. (supra) considered sections 96 and 262 ofthe Administration of Justice Law which contain similar provisions
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as in the said sections 70 and 413 respectively of the old CriminalProcedure Code. Further, nowhere in his judgment did Basnayake,A.C.J. state that an application under section 66 (1) is limited onlyto a case where the production of a document or thing is necessaryor desirable to prosecute the charges. Such a narrow interpretationof section 66 (1) cannot be gathered from any part of thejudgment of Basnayake, A. C. J. The words appearing in section
66 {1)'for the purposes of any proceeding by or before such
Court it may issue summons to the person in whose possessionsuch document or thing is believed to be, requiring him to attend
and produce it', are clear and unambiguous, in that these
provisions apply to any proceeding by or before such Court and arenot confined to a trial only. These provisions of section 66 (1) of theold Criminal Procedure Code are similar to the provisions of section66 (1) of the Code of Criminal Procedure Act which govern thepresent case. Therefore the provisions of section 66 (1) are notrestricted to a trial only but extends to any proceeding by or beforethe Magistrate’s Court which includes even the stage when, afterthe trial is concluded, the Magistrate has to make an order for thedisposal of the property under section 425. If, indeed, the Rs.
is to remain in the accused respondent’s bank accountwithout any restrictions, and he is thereby free to operate on hisaccount, the provisions of section 425 would be renderednugatory, and he would be able to enjoy the fruits of his crime.Thus, having considered the provisions of sections 70 and 66 (1)and 425 of the Code of Criminal Procedure Act, I hold that in thecircumstances of this particular case, justice requires that theaccused respondent's bank account should be freezed till theconclusion of all proceedings connected with this case. I, thereforehold that the order of the learned Magistrate refusing to issuesummons under section 66 (1) of the Code of Criminal ProcedureAct is not an appropriate order. I allow this application, and I setaside the order of the learned Magistrate, and I direct him to issuesummons under section 66 (1) of the Code of Criminal ProcedureAct. No. 15 of 1979, on the Manager, Bank of Ceylon BranchSiyambalanduwa. Moneragala to freeze bank account No. 54 of theaccused respondent till the final disposal of this case.
TAMBIAH, J.-l agree.
Application allowed.