IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

Transcription

1 1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA n he maer o an applicaion or Revision in erms o Aricle 154 P (3) (B)ohe Consiuion o he Democraic Socialis Republic o Sri Lanka read wih Secion 5 o he High Cour o he Provinces (Special Provisions) Ac No.19 o The Oicer in Charge Police Saion, Thirukkovil Complainan CA (PHC)APN HC Kalmunai No. HCEPREV/122/14 MC Pohuvil Case No PC/14 VS. 1. Muhammed brahim Abdul Rasheed, 2. Muhammadu Musaa Razik, 3. Aham Lebbe Muazir, 4. Seenimuhamad Muhamed smail, 5. Sulaimalebbe Muhamaed Uwais, 1 s Pary 1. Alagappa Murugan, 2. Sinnahamby Annahurai, 3. Thangarasa Poobalapillai, 4. Yogenahan Nihiyananhan, 2 nd Pary

2 2 AND BETWEEN 1. Alagappa Murugan 2. Sinnahamby Annahurai 3. Thangarasa Poobalapillai 4. Y ogenahan Nihyananhan 2 nd Pary - Peiioner VS. The Oicer in Charge Police Saion Thirukkovil i, 1 s Responden, 1. Muhammed brahim Abdul Rasheed 2. Muhammadu Musaa Razik, 3. Aham Lebbe Muazir, 4. Seenimuhamad Muhamed, [ smail 5. Sulaimalebbe Muhamaed i Uwais 1 s Pary Responden AND NOW BETWEEN 1 l 1. Muhammed brahim Abdul Rasheed, No.191, Udaiyar Road, i Akkaraipau 2. Muhammadu Musaa Razik, No.8, Beach Akkaraipau. ~ i, & l K-, r ; l l, (

3 3 3. Aham Lebbe Muazir, No. 127, Jummah Mosque Road, Thakkanagar, Aalaichchenai Seenimuhamad Muhamed smail, No.37, Sub Pos Oice Road, Akkaraipau Sulaimalebbe Muhamaed Uwais, No. 106 A, 2/3, Common Road, Akkaraipau. 1 s Pary Responden Peiioners. VS. The Oicer in Charge, Police Saion, Thirukkovil 1 s Responden 1. Alagappa Murugan, Kolavil - 02, Akkaraipau. 2. Sinnahamby Annahurai Sagamam Road, Kolavil - 01, Akkaraipau.

4 4 3. Thangarasa Poobalapillai Kopal Road, Kolavil-02, Akkaraipau. 4. Yogenahan Nihyananhan, R.K.M.Road Akkaraipau nd Pary- Peiioner Respondens. BEFORE: W.M.M. Malinie Gunarane, J. and P.R. Walgama, J. COUNSEL: H.G. Hussain wih S.A. Mohamed or he Peiioners D.N. Thanboo or he 2 nd Responden P.Puviharan or he 4h Responden Ravindranah. Dabare or 1 s, 3 rd Respondens. Argued on Wrien submissions iled on , and Decided on

5 Malinie Gunarane, J. 5 J n his Peiion he Firs Pary - Responden - Peiioners (hereinaer reerred o as he Peiioners) among oher relies are seeking o se aside he Orders daed and , made by he learned High Cour Judge okalmunai. The acs which led o he making o he said Order by he learned High Cour Judge are as ollows: The Peiioners are paddy armers rom he Waumadu area in he Disric o Ampara and he 2 nd Pary - Peiioners - Respondens (hereinaer reerred o as he Respondens) are by occupaion herdsmen and hey are also rom villages in he Disric o Ampara. Since here was a dispue and a ense siuaion prevailing on 24h o Ocober 2014 beween he Peiioners and Respondens, he Oicer in Charge o he Pohuvil Police Saion, produced boh paries under Secion 81 o he Code o Criminal Procedure Ac beore he learned Magisrae o Pohuvil in Case No PC14 on 29 h Ocober 2014 and moved ha hey be asked o show cause why hey should no be bound over agains commiing a breach o he peace. Wihou doing so, he learned Magisrae has made an order permiing Peiioners o culivae he paddy lands and urher ordered o erec a ence around he paddy lands which is in dispue. Agains his Order o he learned Magisrae daed he Respondens, iled a revision

6 J \ ", 6 applicaion beore he Provincial High Cour Holden in Kalmunai o revise he Order o he learned Magisrae. The learned High Cour Judge aer hearing he Respondens' Pary on , graned an inerim relie saying he Order daed o he learned Magisrae unil he conclusion o he applicaion. On 1 s December 2014, he learned High Cour Judge made anoher inerim order saying he enire proceedings beore he Magisrae's Cour o Pohuvil unil conclusion o he Revision Applicaion. The Peiioners have now invoked he jurisdicion o his Cour o inervene by seing aside he said Orders o he learned High Cour Judge on he circumsances menioned in Paragraph 15 o he Peiion. n he hearing o his case, i was he conenion o he learned Counsel or he Peiioners ha he learned High Cour Judge had erred in law in arriving a a deinie inding o illegaliy o he Order o he learned Magisrae made on wihou hearing he Peiioners. The learned Counsel or he Respondens conended ha he learned Magisrae has gone beyond he limis o his powers conerred on him by Secion 81 o he Code o Criminal Procedure Ac and aer hearing boh sides he learned High Cour Judge aced correcly in saying he proceedings beore he Magisrae's Cour opohuvil. Hence, now he sole quesion arising or decision in his case is wheher he learned High Cour Judge has aced legally and reasonably when issuing he wo impugned inerim orders. is an admied ac by boh paries ha he land in quesion is already declared as a ores reserve and governed by he Fores Deparmen.,

7 7 is he conenion o he learned Counsel or he Respondens, ha an area has been declared as a pasure land by he Governmen and i was allocaed only or cale grazing and no culivaion or arming aciviies allowed wihin he said area o land. Bu he learned Counsel or he Peiioners conended, ha he Peiioners are armers engaged in paddy culivaion wih he permission rom he relevan auhoriies, wihin he said area. The learned Counsel urher conended however ha he Respondens had disurbed and hreaened he Peiioners prevening hem rom engaging in arming aciviies and a ense siuaion prevailed. Hence, he Oicer in Charge o Pohuvil Police Saion has produced boh paries iling a repor under Secion 81 o he Code o Criminal Procedure beore he learned Magisrae iling an applicaion and had moved ha hey be asked o show cause why hey should no be bound over agains commiing a beach o he peace. Secion 81 o he Code o Criminal Procedure Ac reads as ollows: "Whenever a Magisrae receives inormaion ha any person is likely o commi a breach o he peace wihin he local limis o he jurisdicion o he Cour o such Magisrae, or ha here is wihin such limis a person who is likely o commi a breach o he peace or do any wrongul ac as aoresaid in any place beyond such limis he Magisrae in any manner hereinaer provided require such person o show cause why he should no be ordered o execue a bond wih or wihou sureies or keeping he peace or such period no exceeding wo years as he Cour hinks i o ix". l,- i l i i, i l

8 8 Aer he proceedings were iniiaed in ha manner, he learned Magisrae should ollow he procedure laid down in Secion 85, 86 and 87. When a person appears or brough beore a Magisrae, he shall proceed o inquire ino he ruh o he inormaion upon which he has aced and o ake such urher evidence as may appear necessary. (Secion 86(1)). upon such inquiry i is proved ha i is necessary or keeping he peace or mainaining good behaviour, ha he person in respec o whom he inquiry is made should execue a bond wih or wihou sureies, he Magisrae shall make an order accordingly. (Secion 87). is signiican o noe ha he learned Magisrae wihou complying wih he aoresaid procedure, has made an order, which he is no eniled o make in an applicaion under Secion 81 o he Code o Criminal Procedure Ac, allowing some armers o culivae he land and erec a ence around he land in dispue, governed by he Fores Deparmen. The learned Magisrae has erred in law making an order in regard o he possession in his case. He canno decide on he possession o he land and canno by his order permi o erec a ence round he land in dispue. Hence, i is very clear ha he learned Magisrae has gone beyond he limis o his powers conerred on him by Secion 81 o he Code o Criminal Procedure Ac, and no in any way conribue o he mainenance o peace. Hence, he Vew o he Cour is, he learned High Cour Judge considering ha he learned Magisrae has no power o make such an order in an applicaion under Secion 81 o he Code o Criminal Procedure Ac, has correcly graned he say order. Accordingly, he acs saed in he l i ~, i l ~ [

9 9 Peiion do no warran o inerere wih he order o he learned High Cour Judge. n he above seing, am o he view ha he Peiioner's argumen is devoid o meris and should sand dismissed. Accordingly, his peiion is dismissed wih coss., i; \, P.R. Walgama, J. agree Peiion is dismissed. JUDGE OF THE COURT OF APPEAL JUDGE OF THE COURT OF APPEAL, i i J 1 [ ),