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ABDUL CADER v. FERNANDO.
P.C., Colombo, 76,306.
Causinghurt voluntarilywith knife—Amendment of charge after evidence
heard—Charge of grievous hurt—Summary trial of accused by Magistrate,
inhis capacity asDistrictJudge—Criminal Pocedure Code, s.152—
Anaccused beingchargedwith causing hurt with a knifeunder
^section 315 of the Penal Code, witnesses were examined and the case post-jioned. Some days afterwards the wound being found to be of a grie-vous nature, the charge was altered to one under section 317, and theaccused was informed by the Magistrate that he would be tried by himas District Judge, The accused pleaded not guilty, and the witnesseswererecalled andtenderedfor cross-examination, The casewas
then adjourned for want of time. On a subsequent day, the accusedobjected to the summary trial, but the Magistrate proceeded with thecase. The accused cross-examined the witnesses.
Held, on appeal against a . conviction, that as the amendment ofthe charge was not made too late, nor the accused prejudiced, theobjection to the .proceedings should not succeed.
HE accused in this case was charged with causing hurt with aknife to one Pieris, under section 315 of the Penal Code.
After two witnesses were examined on the 27th June, 1902, thecase was postponed for the following day, when two more witnesseswere examined, including the Judicial Medical Officer, who gaveevidence to the effect that Pieris had a stab wound 1J inch long
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1902. an)j 3j inches deep ou the inner ride of the right arm, and that heAug*? 7. wag unjW# to- say for what length of time Pieris would bedisabled; he could not express any opinion as to whether thewound was grievous or not. The case was adjourned, and theJudicial Medical Officer examined on the 9th July. He sworethat Pieris “ will be incapacitated over twenty days: over five daysfrom now.”
The Police Magistrate (Mr. R. B. Hellings) thereupon alteredthe charge to one under section 317, and recorded as follows:—
“ Charge amended, section 317. Accused informed. It is triableby a District Court. I find it can be properly tried summarily byme, as I am an Additional District Judge. I inform the accusedthat I intend so to try him.
” He pleads not guilty.
" I tender all the witnesses for cross-examination. Accused’sproctor wishes to cross-examine them. Postponed to 10th forwant of time.”
On the 10th July the accused objected to be tried summarily.The Magistrate .over-ruled the objection on the authority of thedecision of the Supreme Court in P. C., Colombo, 71,853, and calledthe witnesses already examined. They were cross-examined byaccused’s counsel. Evidence for the defence was also heard.And the Court found the accused guilty and sentenced him toone year’s rigorous imprisonment.
The accused appealed.
Dornhorst, for appellant.—The Magistrate was wrong in arro-gating jurisdiction when he had passed the stage at which section152 of the Criminal Procedure Code gives him power to amendthe charge. That stage is after the preliminary evidence, not afterthe greater part of the evidence has been heard. The Magistratemay, on discovering that a hurt is technically grievous, decide totry the case summarily ob initio. But here the accused was triedon one charge, and after most of the evidence was recorded, thecharge was altered and jurisdiction arrogated. There are DistrictJudges available in Colombo to try this case. Chetty v. Pitche(1 Browne, 335); Queen v. Tamby (I Browne, 129). It is import-ant that a man should know,, when the witnesses are being heard,whether it is an inquiry or a trial.
H. J. C. ^pereira, for respondent.—The original charge was non-summary. It was one under section 315. The proceedings were notan inquiry turned into a trial. There was no prejudice done to theaccused in any way. Finding the hurt was grievous the Magistrate
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changed the charge and allowed the accused to re-call the wit- 1902.nesses and cross-examine them. The alteration of the charge Aqs?•
under section 172 made no difference in the evidence. The accused
and his proctor acquiesced in the procedure by cross-examiningthe witnesses, and the accused was not prejudiced. Seotion 425 ofthe Criminal Procedure Code, therefore applies. Bonser, C.J.,never said in the cases cited that the Magistrate could not try thecase, but that it ftas advisable that he should not. He has thepower to try under seotion 152. His practice in doing so hasbeen sanctioned by the Supreme Court in P. C., Colombo, No.
71,853, which the Magistrate quotes.
7th August, 1902. Monoreiff, A.C.J.—
The charge against the appellant, dated the 27th June, 1902,was that of causing hurt with a knife, an offence punishable undersection 315 of the Penal Code. On the same day, the Magistrateproceeded to try him summarily, and witnesses were examinedand cross-examined for the appellant. On the 28th June, afterhearing the evidence of the Judicial Medical Officer, the Magistratealtered the charge to one of causing grievous hurt with a knife, anoffence punishable under section 317 of the Penal Code. Thisoffence is triable in a District Court, but not in a Police Court.So the Magistrate announced that he could properly, and that heintended to, try the case summarily in accordance with the powergiven him, in his capacity of Additional District Judge, by seotion152 of the Criminal Procedure Code.
The accused then pleaded to – the amended charge, and thewitnesses were tendered for further cross-examination.
On the 15th July this course was objected to, but the objectionwas over-ruled. Witnesses were re-called and cross-examinedand the case for the defence was entered upon and concluded.The appellant was sentenced to one year’s rigorous imprison-ment.
I do not think that the alteration of the charge was made toolate in the proceedings, or that the appellant was prejudiced byit. Whatever the immediate object of section 152 of the CriminalProcedure Code may have been, it gave the Magistrate power todo what he did. I grant there are cases of a nature so seriousthat Magistrates should hold their hands and proceed with themas being fit for non-summary trial, but this was not such acase.
I therefore think that the objection taken on behalf of theappellant should not succeed.
ABDUL CADER v. FERNANDO