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1930 Present: Garvin S.P.J.
GABRIEL v. SOYSA et al.
708-P. C. Negombo, 66,300
Appeal-Acquittal of accused by Magistrate after recording complainant evidence-Effect of order-Appeal by
complainant-Sanction of ' Attorney-General.
Where, in a summary trial, the Magistrate, after hearing' the evidence of the complainant, discharged an accused on
a legal objection raised on his behalf,-
Held, the order was tantamount to an acquittal under section 190 of the Criminal Procedure Code and that no appeal
lay from the order without the sanction of the Attorney-General.
The Court is not bound to record the evidence offered by the defence before entering a verdict of acquittal under
section 190. if the Court disbelieves the evidence for the prosecution or if that evidence fails to establish the charge
against the accused.
APPEAL by the complainant from an order of acquittal entered by the Police Magistrate of Negombo.
E. V. R. Samarawickreme, for complainant, appellant.
N, E. Weerasooriya (with L. A. Rajapakse), for accused respondents.
March 25, 1930. GARVIN S.P.J.-
A preliminary objection has been taken to this appeal on the ground that it is an appeal by the complainant from a
judgment of acquital and has not received the sanction of the Attorney-General. It is urged by Counsel for the
appellant that no sanction is necessary as the order though in form an acquittal is in effect an order of discharge
under section 191. The complainant is a Fiscal's-peon who was deputed to arrest the first accused upon a warrant
issued in case No. 770 of the District Court of Negombo. The charge he makes is that the first accused offered
resistance and illegal obstruction to his apprehension on the said warrant and that the second accused-the wife of the
first accused-rescued her husband from custody and offered illegal obstruction to the apprehension of her husband.
The persons accused were duly charged and severally pleaded "' not guilty." The complainant was examined and
cross-examined at considerable length. The Proctor for the accused then submitted that the warrant was bad and was
therefore not a sufficient authority for the arrest of the first accused.
315
After argument the Magistrate delivered a judgment holding 1930 that the warrant M as defective and that the
prosecution therefore failed. He accordingly acquitted the accused. This is not a case of the inadvertent use of the
word acquittal where what was meant was a discharge. It is quite clear that the Magistrate intended Jo acquit the
accused because in his view the whole prosecution failed. If therefore the contention for the appellant is to succeed it
can only be because the judgment of acquittal is one which it was manifestly not in. the power of the Magistrate to
have passed. It is urged that once a summary trial has commenced a Magistrate may only enter a verdict of acquittal
or conviction " after taking the evidence for the prosecution and defence and such further evidence (if any) as he
may of his own motion cause to be produced" (section 190), -and that any order terminating the proceeding at any
earlier stage must be treated as, and can only have the effect of, an order of discharge under section 191.
Section 190 requires the Magistrate at the conclusion of a summary trial forthwith to record a verdict of acquittal, or
if he finds the accused guilty forthwith to record a verdict of guilty and pass sentence. There undoubtedly are cases
in. which a trial is only concluded after " the evidence for the prosecution and defence and such further evidence (if

any) as he (the Magistrate) may of his own motion cause to be produced" has been taken.
The words quoted by me were not in my opinion intended to place the Court under a duty to record the evidence
offered by the defence before entering a verdict of acquittal if disbelieves the evidence for the prosecution or of that
evidence fails to establish the charge against the accused, nor do I think they compel a Magistrate to record the
evidence of every witness for the prosecution no matter how numerous they may be merely because the prosecution
tenders them. Such a view of the section would deprive the Magistrate of the power to control the course of the trial.
The failure or refusal to record the evidence of a material witness may in certain circumstances be of itself a
sufficient reason for setting aside a judgment of acquittal and directing a new trial, but does not entitle the
complainant to treat a judgment of acquittal as an order of discharge under section 190. He is not without a remedy
since the Code enables him to appeal with the sanction of the Attorney-General.
In this case the prosecutor does not even complain that he had evidence to offer which would have influenced the
judgment of the Magistrate, or which should have been considered by him before he acquitted the accused.
The objection to this appeal is well founded and must be upheld
The appeal is dismissed.
Appeal dismissed.
501
1969 Present : de Kretser, J.
P. PABILIS, Appellant, and SUB-INSPECTOR OF POLICE,
KAHATUDUWA, Respondent
S. C. 834/68-M. C. Horana, 44642
Penal Code-sections 451 and 449-Offence of loitering about by -reputed thief- "Being a reputed thief "-"
Loitering "-Offence of unlawful possession of house-breaking instrument-' House .breaking Instrument ".
The accused-appellant was charged in that (1) being a reputed thief he was found loitering about- a public
place with intent to commit theft, and (2) he did possess without lawful excuse an instrument of house-
breaking, to wit, a
jemmy.
Held. (i) that it was open to the prosecution to lead evidence of the accused's previous convictions for
theft for the purpose of establishing that he was a reputed thief. The fact that the officer who arrested him
was not aware of his reputation at the time of arrest was irrelevant.
(ii) that the word -' loiter" means "linger on the way; hang about; travel indolently and with frequent
pauses."
(iii) that an iron rod with a pointed end does not answer to the description of a "jemmy" and is not primarily
an instrument of house breaking.
502
APPEAL from a judgment of the Magistrate's Court,
Horana. Ranjit Gooneratne, for the accused appellant.

Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
February 26, 1969.DE KRESTER, J.-
The Magistrate of Horana (Mr. J. J. F. A. Dias) convicted the accused of the two charges laid against him
which were: 1.... Being a reputed thief did loiter about a public place to wit Halpita with intent to commit
theft.. .2.... Did possess without lawful excuse an instrument of housebreaking to wit a jemmy. He
sentenced the accused on count 1 to six months' R.I. which was something he did not have the right to do
for the offence if it was to be punished with imprisonment could only be with imprisonment up to three
months. On count 2 the sentence was six months' R.I. and was consecutive to the sentence on count 1.
The accused has appealed.
Counsel for the appellant urges three matters: 1. That it is not proved that the accused was a reputed
thief. 2. That it is not proved that he loitered. 3. That the weapon he was in possession of was not a
jemmy and that it is not established that it was intended to be used for house-breaking.
Counsel for the appellant cites the case of Perera s. The Police 1[ '(1946) 32 C. L. W. 108.] in which de
Silva J., said "It is not open to the prosecution to lead evidence of previous convictions to establish the
fact that accused is a reputed thief. The evidence available for the prosecution must be evidence of the
reputation of the accused apart from previous convictions." He also cited the case of Mansoor v.
Jayatilleke 2 [ 1 (1947) 48 N. L. R. 308.]in which Dias J., said The words of section 451 are 'Being a
reputed thief', that is to say the burden is on the prosecution to show that at the time the accused loitered
or lurked about a public place he had the reputation of being a thief. The prosecution does not discharge
that burden by first arresting the accused on suspicion and then en post facto establishing that he was a
thief, a fact which was UNKNOWN at the time that the alleged offence was committed."
These two cases were before Tennekoon J., when he heard the appeal in S.C. 742/67 S. C. Minutes of
6.11.67 in which case the prosecution had proved five previous convictions for theft and the fact that the
accused was an I. R. C. and known as such to the Police officer who arrested him in proof of the fact that
he was a reputed thief. Tennekoon J. said "The proposition that the reputation of being a thief must exist
at
503
the time of loitering is unexceptionable but with respect it seems to me that it is irrelevant that the
arresting officer did not know that the accused had such a reputation at the time of arrest I cannot see
why the fact of the accused being a reputed thief at the time of loitering which is one of the ingredients of
the offence under section 451 of the Penal Code cannot be established independently of the arresting
officer's knowledge of the accused's reputation." In agreeing with Tennekoon J. it appears to me that the.
error in the order of Dias J. is that Dias J. has lost sight of the fact that the reputation of the accused at
the time he loitered is not dependent on the fact that the police officer was aware of it. e.g. If it is an
offence for a Boy Scout to loiter in a public place the fact that a police officer who observed him loitering is
unaware that he is a Boy Scout does not make him any the less a Boy Scout while he was so loitering.
What do the words in the section "being a reputed thief connote? The adjective "reputed" according to the
dictionary means "generally accounted or supposed to be such ". A reputed thief therefore is one
generally supposed to be a thief or generally accounted a thief. And it appears to me that there is no more
certain way of a person being generally accounted a thief than to be convicted for theft more than once;
and it appears to me as it did to Tennekoon J. that a person who has repeated convictions for theft is a
thief who cannot but have the reputation of being a thief. It appears to me that de Silva J. had lost sight of
this when he gave the dictum which I have quoted in this Order. In my view therefore it is open to the
prosecution to lead evidence of a man's previous convictions for theft for the purpose of establishing that

he is a reputed thief at the time he committed the offence, and the fact that the officer who arrested him is
not aware of his reputation at the time of arrest is irrelevant. In the instant case the evidence is that of P.
C. 7241 Perera who said "I know the first accused well and I identified him. I am aware that he has
previous convictions for theft and that he is an I. B. C. ". This evidence in my opinion clearly establishes
that at the time of arrest the police officer was aware that the man was a reputed thief because he was
personally aware that the man had previous convictions for theft and was an I. B. C.
It appears to me therefore that in any event the fact that the accused was a reputed thief was proved by
the prosecution.
In regard to loitering the relevant evidence of the police officer is as follows: "I remember 12.3.67. At
about 3.15 a.m. I was patrolling the Halapita. area I saw the flash of a torch in our direction. We stopped.
Then three men came and when they were about twelve yards away from us I flashed my torch at them
when I ordered them to stop they started running."
The word "loiter" is defined in the Concise Oxford Dictionary as meaning to "linger on the way; hang about
; travel indolently and with frequent pauses ". Having regard to this definition it is clear that the
504
evidence of the prosecution does not establish that the accused was loitering on this day. The charge
under section 451 therefore fails and I set aside the conviction and sentence imposed by the Magistrate.
In regard to count 2 Counsel submits that there is no evidence that accused was in possession of a
"jemmy" as alleged in the charge. The evidence is that there was in his possession "an iron rod with a
pointed end ". Under cross-examination it was got out that the other end was a blunt one. It is submitted
this is not a jemmy which is defined in the dictionary as a" crowbar used by burglars and usually made in
sections ". The Magistrate who had the advantage of seeing the weapon has made no finding in regard to
it. It appears to me that an iron rod with a pointed end does not answer to the description of a jemmy. The
importance of the distinction is that the burden is on the prosecution to establish that the instrument found
in the possession of the accused is an instrument of house-breaking and in order to discharge that burden
it would be sufficient for the prosecution to prove that the instrument is commonly used for house-
breaking. Where however the instrument was ordinarily used for a purpose other than house-breaking but
could also be used for housebreaking, in order to discharge the burden there should be proof that the
instrument was intended to be used for house-breaking. Unlike a jemmy an iron rod with a pointed end is
not primarily an instrument of housebreaking. The constable can only say that it was possible to put it to -
that use, and under cross-examination he says that he does not know whether it was not used for finding
out the depth of soil for cultivation of vegetables. The circumstances in which the accused was arrested
which I have set out earlier in this order do not lead to the irresistible inference that the accused was
armed with this rod for the purpose of housebreaking. In the result this charge too must fail. The
conviction and sentence of the accused is set aside and his appeal is allowed.

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