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ADONIS APPU v. NICHOLAS.P. C., Balapitiya, 23,712.
Offence not summarily triable—Trial by consent—Criminal Procedure Code,s. 166—Obtaining consent of accused before framing charge—Irregularitytoithout prejudice—Conviction for lurking house trespass and theft—Separate sentences.
Where information had been given to the Police Court of theft in thecomplainant’s house and gaining entrance into his house through a holemade near the frame of the door, and the accused, being brought up onthe same day, knew the fact of this information and what they weregoing to be charged with, and the Magistrate, deeming it expedient totry the case summarily, obtained their consent to do so withont havingpreviously framed the charges of lurking house trespass and theft, asprovided in section 166 of the Criminal Procedure Code, and thenconvicted them of those offences and passed two separate sentences,—
Held, that as the charge was framed almost immediately after theirconsent was obtained, and they did not object to that procedure orconsider themselves injured by it, the irregularity complained of in-appeal did not justify the reversal qf the conviction.
Held, further, that lurking house trespass and theft were distinctoffences and punishable with separate sentences.
PPEAL against a conviction for lurking house trespass, undersection 439 of the Penal Code, and for theft. The Police
Court of Balapitiya was informed of the theft in the complainant’shouse and that entrance thereto had been gained through a holemade near the frame of the door. The accused, who knew thefact of this information and what they were going to be chargedwith, were brought up before the Magistrate. He deemed itexpedient to try the case summarily and obtained the consent ofthe accused to do so, without previously having framed the chargesof lurking house trespass and theft. After hearing evidence forthe prosecution and defence, he sentenced the accused to rigorousimprisonment for three months for each of the offences aforesaid,such sentences to run in succession.
H. Jayawardene, for appellant.—The offence of lurking housetrespass is beyond the jurisdiction of the Police Court. TheMagistrate illegally obtained the consent of the accused to be triedin the Police Court. No charge had been framed against thembefore they consented. Section 166, sub-section (3), of the CriminalProcedure Code shows the proper procedure to be adopted by theMagistrate, if he thinks it expedient to deal with, the case himself.He framed no charge as he ought to have done under that section;the accused therefore did not then know what they were tried for,and their consent has no value. [Monorriff, A.C.J.—Is that a
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1902.substantial objection?] Certainly, not to know what they are going
August 21. to be tried for.- How are they to direct their evidence in defence?
Victoria Kurera v. Jusey Fernando, 7 8. C. C. 177; Christian v.De Soyaa, 9 S. C. C. 176. There is another serious irregularity.The Magistrate recorded part of the evidence for the prosecution.He then examined some of the witnesses for the defence, andthen he resumed the evidence for the prosecution. That wasunfair and embarrassing. The conviction and sentence also areillegal. The Magistrate found the accused guilty under sections439 and 367 and awarded two separate sentences, which section67 of the Penal Code does not justify. Meedin v. Kirihatana,2 N. L. R. 167; Queen v. Cara, 1 N. L. R. 320. In Mendis v.Cornelia (3 N. L. R. 196) Bonser, C.J., expressed a contrary opinionand questioned the soundness of the decision in Meedin v.Kirihatana. That, however, leaves the weight of authority againstthe imposition of two sentences for an offence arising out of thesame act or series of acts. One of the sentences here should becancelled.
21st August, 1902. Monoreiff, A.C.J.—
The accused appeal from a conviction on charges framed undersections 869 and 489 -of the Penal Code. It has been urged ontheir behalf that the Magistrate has committed some irregularitieswhich entitle the accused to have their convictions set aside.In this case, after one of the 'witnesses had been calledj theMagistrate entered a note to the following effect: “ I think thiscase may be tried summarily. Accused explained the differencebetween a Police Court and a District Court trial and their rightto the latter. They prefer this Court.”
Now, at that time the Magistrate had framed no charge, nor didhe read the report as a charge. So he undoubtedly’ did notobserve the terms of sub-section (3) of section 166 and sub-section(3) of section 187 of the Criminal Procedure Code. At a laterperiod of the case he did frame a charge, and the case proceededsummarily. A decision was quoted to me ■ from 7 8. C. C.
. 177, Kurera v. Fernando, in which Chief Justice Burnside setaside a conviction on the ground that the Magistrate reversed thereasonable provision- and the natural order supplied by theProcedure Code by first asking the accused if they consented tobe tried, and then, having received their consent, informing themof the offences for. which they were to be tried. Undoubtedlythe Magistrate was wrong, but to my mind the question in thiscase is whether any harm has been done. It cannot be saidthat the accused were ignorant of what they were charged, or
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what they were going to be charged with, because there is1902,
the complaint on the information given to the Court. This August Zl.information is dated on the day of the trial, but it relates to thetheft of certain articles from a certain house on a certain day and A.C.J.at a certain hour, and to the fact that entrance had been gainedby making a hole near the frame of the door. There being nodoubt that the accused knew what charge had been, or wasabout to be, brought against them, they must have been wellaware of what they were doing when they consented to be triedsummarily. In point of fact, the charge was framed on the sameday and almost immediately after their consent, two or threepages later in the record. When the charge was made andexplained to them, they took no objection, they did not considerthemselves injured.Asfar as I know they made nocomplaint
in the Court belowonthat subject.That being so,I am not
willing to set asidetheconviction ina case in whichsubstantial
justice have been done,and in whichthe irregularitiescomplained
of have had no injurious results.
Then it was urged that the conviction was wrong, because theMagistrate has convicted the accused under two sections andindicted practically two sentences, a sentence on each charge.
I may refer to the case of Meedin v. Kirihatana (2 N. L. R. 157),and also to the case of Queen v. Cara (1 N. L. R. 320), whereWithers, J., held' that, • although there may be two distinct chargesin a case, one conviction only can properly take place, providedthe two acts complained of are part or product of one intention.
There is also a case in 3 N. L. R. 368, which seems to bemore pertinent. I am not disposed to agree with the objection.
The accused are not charged under any provision making thecomplex act of stealing from a dwelling-house, and doing so bymeans of committing house trespass, one offence. There are twodistinct offences, although .they may be founded upon one seriesof acts, and in my opinion it was not only right but. necessarythat there should be a conviction on each of the charges. On that. point the Magistrate is right.
As for the merits, I think that there was abundant evidenceupon which the Magistrate could rest his decision, and I aminclined to think his view of the facts is correct. That beingso, the conviction must be affirmed.
ADONIS APPU v. NICHOLAS