038-NLR-NLR-V-38-JOHN-v.-PIRA-et-al.pdf
DALTON S.P.J.—John v. Pira.
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1936Present: Dalton S.P.J.
JOHN v. PIRA et al.
344—P. C. Kandy, 50,495.
Autrefois acquit—Charge of cruelly stoning a bull to death—Acquittal—Freshcharge of mischief—Penal Code, s. 412—Criminal Procedure Code,s. 330 11).
An acquittal on a charge of cruelly stoning a bull to death undersection 5 of the Prevention of Cruelty to Animals Ordinance, No. 13 of1907, is no bar to a charge based on the same facts of causing mischiefunder section 412 of the Penal Code.
^jPPEAL from an acquittal by the Police Magistrate of Kandy.
A. Rajapakse, for complainant, appellant.
Cur. adv. vult.
July 30, 1936. Dalton S.P.J.—
The three accused persons were charged by the Inspector of the
S.P. C. A., Kandy, on December 13, 1935, with cruelly stoning to deatha black bull, in contravention of section 5 of Ordinance No. 13 of 1907.On February 7, 1936, they were acquitted by the Police Magistrate onthe ground that the evidence disclosed that the death of the animal wasnot painful. He stated in his order that the owner of the bull, if hewishedj could take further proceedings against the accused on a charge ofmischief.
On the same date John, the owner, made a complaint. against theaccused of killing the bull, which was stated to be worth Rs. 60 or Rs. 70,and he charged them with mischief. The matter came on a subsequentdate before the Additional Police Magistrate, when objection was takenon behalf of the accused that the previous proceedings were a bar to thischarge at the instance of John the owner, since they had been acquittedon the previous charge on February 7. The Additional Magistrateafter argument upheld this objection and acquitted them.
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DALTON S.P.J-—John v. Pira.
John now appeals aganist that acquittal, with the written sanction ofthe Attorney-General.
The first case was launched by the Inspector of the S. P. C. A. -for acontravention of a provision of the Prevention of Cruelty to AnimalsOrdinance, 1907, which is an Ordinance restricted to a particular classof offence. The Additional Magistrate has held that these formerproceedings were also sufficient in point of law upon which to base acharge of mischief under section 412 of the Ceylon Penal Code, applyingthe provisions of sections 181 and 182 of the Criminal Procedure Code.Therefore, in view of the provisions of section 330 (1) of the CriminalProcedure Code, the accused were not liable to be tried again on thesame facts.
I regret I am unable to agree with the conclusion come to by theAdditional Magistrate. He holds that the provisions of section 181 ofthe Criminal Procedure Code apply, and that the three accused couldhave been charged in the earlier proceedings for committing mischief onthe evidence adduced in those proceedings. He points out that it wouldappear from the facts that the “ act ” complained of in the earlierproceedings was the killing of the bull, which “ act ” was common to acharge both under section 412 of the Penal Code and under section 5 ofthe Prevention of Cruelty to Animals Ordinance. It is not, however,correct to say that the act complained of in the earlier proceedings wasthe killing of the bull. That fact was proved, but the accused werenevertheless acquitted. The act complained of there was the use ofunnecessary cruelty. In the event I am unable to see how, in thewords of section 181, any doubt could arise as to whether the facts whichcould be proved constituted an offence against the provisions of section 5of the Prevention of Cruelty to Animals Ordinance or against those ofsection 412 of the Penal Code.
It would further appear that if there had been any joinder of chargesin the earlier proceedings in respect of these two offences, objection mighthave been taken to the joinder of these charges by the accused, underthe provisions of section 178 of the Criminal Procedure Code. It washeld in Saineris v. Amadoris1 that the exceptions mentioned in theCriminal Procedure Code (e.g., section 181) did not apply, and that thejoinder of the two charges there was improper.
The appeal must be allowed, and the order of the lower Court upholdingthe objection must be set aside. The proceedings on the second chargewill therefore be continued, an after hearing all the evidence put beforehim the Magistrate will proceed to adjudicate afresh.
Sent back.
1 3C. w. R. 322.