When proceedings are instituted by the police threat to the breach of the peace is presumed. Vide Punchi Nona v. Padumasena [1994] 2 Sri LR 117.

-

  

ALUTHGAMAGE PIYASEELI VS ALBERT WANIGAPURA

 

HON MAHINDA SAMAYAWARDHENA, J.

CA CASE NO: CA (PHC) 193/2013

HC TANGALLE CASE NO: 1/2013/REV
MC WALASMULLA CASE NO: 23621

 Aluthgamage Piyaseeli,
'Kellegedara", Mulgirigala,
Weeraketiya.

Wanigasingha Arachchige Pradeep Rohana,
'Lakshila', Puhulhena Road,
Mulgirigala.

2nd and 3rd
Respondents-Petitioners-Appellants
Vs.

Albert Wanigapura,
Beheth Salawa, Kiwulara,
Ihala Beligalla, Beliatta.

And 11 Others

Respondents-Respondents- Respondents


Before : K.K. Wickramasinghe, J.
               Mahinda Samayawardhena, J.

Counsel : Chandrasiri Wanigapura for the 2nd and 3rd Respondents-Appellants.
                 (No written submissions have been filed on behalf of the Appellants.)
                 Priyantha Deniyaya for the Respondents- Respondents.

Decided on : 18.07.2019

Mahinda Samayawardhena, J.

The 2nd and 3rd Respondents-Petitioners-Appellants have filed this appeal against the Judgment of the High Court dated 28.10.2013 whereby the order of the Magistrate's Court dated 18.12.2012 was affirmed.

The police instituted proceedings in the Magistrate's Court under section 66(1)(a) of the Primary Courts' Procedure Act making the 1st Respondent and the 2nd and 3rd Respondents parties upon a road dispute. Several other parties later intervened supporting the case of the 1st Respondent. It was the position of the 1st Respondent that the disputed road, which has been using for a long time was closed by the 2nd and 3rd Respondents recently. This was established by a spate of documents, mostly affidavits tendered by respectable people of the area. There had been two police observation reports, and the first one is favourable to the 1st Respondent and the second one to the 2nd and 3rd Respondents. The learned Magistrate has, in the facts and circumstances of the case, accepted the first one as the one which portrays the true situation.

The main complaint of the 2nd and 3rd Respondents is that there is an alternative road from the northern boundary of the 1st Respondent's land. However, there is no evidence that the 1st Respondent and the intervenient Respondents had been using that road before the alleged obstruction of the disputed road.

The argument of the learned counsel for the 2nd and 3rd Respondents that there was no threat to the breach of peace and therefore the Magistrate's Court had no jurisdiction cannot be acceptable when the proceedings are initiated by the police as opposed to an individual. When proceedings are instituted by the police threat to the breach of the peace is presumed. Vide Punchi Nona v. Padumasena [1994] 2 Sri LR 117.

What the learned Magistrate has ordered is a provisional one until the rights of the parties are decided by the District Court. If the 2nd and 3rd Respondents think that there is an alternative road although less convenient, they can file a civil case in the District Court to vindicate their rights.

I see no reason to interfere with the Judgment of the High Court, which affirmed the order of the Magistrate's Court.

Appeal is dismissed without costs.

Judge of the Court of Appeal

K.K. Wickremasinghe, J.
I agree.

Judge of the Court of Appeal

 

Comments

Post a Comment

Popular posts from this blog

CIVIL PROCEDURE AMENDMENT NO 43 OF 2024

-
Image
  defult of appearance - An overview  by GalleLaw Blogger  on the amendment 43 of 2024 to section 86, 87 and 88 to the CPC  VACATION OF exparte ORDERS, JUDGMENTS AND DECREES. The Civil Procedure Code (Ordinance No. 2 of 1889) governed case procedures in the Original and Appellate Courts for nearly 85 years, from 1889 until 1974, when it was replaced by the Administration of Justice Laws No. 44 of 1973 and No. 25 of 1974. During a brief period from 1974 to 1977, the Civil Procedure Code was superseded by the AJL. However, in 1977, the Civil Procedure Code of 1889 was reinstated by the Civil Courts Procedure (Special Provisions) Law No. 19 of 1977. Section 86 of the Civil Procedure Ordinance outlined the procedures for setting aside a decree *nisi*  (a provisional judgment)  under the CPC ordinance. Under Section 86(2), if a defendant provides reasonable grounds for the default, the court was empowered to set aside the decree and resume the case from the s...
Read more

What law governs the granting or remanding of an accused or suspect person? The law that governs the granting or remanding of an accused or suspect person is the Bail Act No. 30 of 1997. This Act provides for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It also provides for the granting of anticipatory bail and other related matters. The Bail Act establishes that the grant of bail should be the guiding principle, subject to exceptions as provided for in the Act, and refusal to grant bail should be the exception. It prevails over the provisions of the Code of Criminal Procedure Act and other written laws, except for the Release of Remand Prisoners Act, No. 8 of 1991.

-
Image
  SUMMARY BY THE BLOGGER    Background:  The accused has been indicted for the offense of grave sexual abuse of a minor, an offense is punishable under section 365B (2) (b) of the Penal Code. The accused was initially released on bail by the Court. The trial against the accused commenced on 21-07-2022. On 5th October 2023, the Court ordered the accused to be remanded pending further trial. The Lawyer for the accused filed a motion seeking bail, but it was refused.   The petitioner, acting on behalf of the accused, filed an application for revision in the Court of Appeal invoking Article 138 of The Constitution. After considering the facts, circumstances, and relevant law, the Court ordered the immediate release of the accused from remand custody on the earlier bail conditions.   1.   The Court relied on section 263 of the Code of Criminal Procedure Act to remand the accused, but failed to consider the relevant provisions of the Bail Act No. 30 of ...
Read more