Gunawardene v. Veloo
1948Present: Wij eye war dene A.C.J.GUNAWARDENE et al, Appellants, and VELOO (Inspector ofPolice), Respondent
S. C. 870-871—M. C. Gampaha, 44,814
Criminal Procedure Code—Magistrate assuming jurisdiction as District Judge—Transfer of Magistrate—Successor continues proceedings without indepen-dent decision to act under section 152 (3)—Conviction not vitiated—Sections 152 (3), 292 and 425.
Where a Magistrate decides to try a case summarily under section152 (3) of the Criminal Procedure Code his successor in office can continuethe proceedings without an independent decision of his own that thecase is properly triable under that section. In any event the failure tomake such a decision does not amount to more than an irregularitywhich is curable under section 425 of the Criminal Procedure Code.
WIJEYEWAUDENE A.C.J.—Gunawardene v. Veloo
■AlPPEAL from a judgment of the Magistrate, Gampaha.
H. W. Jayeivardene, for 1st accused, appellant.
C. S. Barr Kumarakulasingham, for 2nd accused, appellant.
A. C. M. Ameer, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 12, 1948. Wijbyewabdene A.C.J.—
Proceedings were instituted before Mr. J. E. A. Alles in the Magistrate’sCourt of Gampaha on a written report by a Police Officer that the accusedcommitted an offence punishable under section 419 of the Penal Code.In the presence of the accused, Mr. Alles recorded the evidence of oneSixisena and then decided to try the case under section 152 (3) of theCriminal Procedure Code, as the facts were simple and the case could bedisposed of expeditiously in the Magistrate’s Court. The Magistrate,thereafter, charged the accused, and on their pleading not guilty thecase was fixed for trial on June 3, 1948. On that date the case couldnot be taken up, as the Government Analyst, a material witness for theCrown, was absent. The case came up for trial next on July 6, 1948,before Mr. P. A. de S. Senaratne who had succeeded Mr. Alles, on thelatter being transferred to another station. Mr. Senaratne recorded theevidence of Sirisena de novo in addition to the evidence of the GovernmentAnalyst and other witnesses called by the prosecution. The Counselappearing for the accused led evidence for the defence the same day andthe Magistrate convicted both the accused.
It is argued in appeal that the entire proceedings before Mr. Senaratneare vitiated by the fact that the proceedings were conducted by him undersection 152 (3) merely on the basis of the assumption of jurisdiction byMr. Alles. It is contended that Mr. Senaratne should have recordedsome evidence and then decided whether he should proceed under section152 (3) independently of the previous decision reached by Mr. Alles.
My attention was drawn to an obiter dictum of Browne A.J., in TheQueen v. Silva 1. It is sufficient to say that the facts of that case are■different. There, one Magistrate recorded the evidence of a witnessand his successor decided on the evidence so recorded to act under section152 (3), merely because he was both a Magistrate and District Judge.It was in reference to these facts that Browne A.J., said :—
“ I doubt he could do so upon the mere examination of the complain-ant made by another than himself, and he has not recorded that he wasof opinion that the offence charged might properly be tried summarilyby him. His reason was stated by him to be that the charge was onetriable by a District Judge, and that he held the dual office of Judgeand Magistrate. That per se is not sufficient reason for exemptingnon-summary charges from the operation of Chapter XVT ”.
1 (1901) 5 N. i. R. 17.
Thiagarajah v. A.nnaikoddai Police,
I do not think there is any merit in the argument of the appellant’sCounsel. When Mr. Alles decided to try the case under section 152 (3),he was still going to try the accused as a Magistrate but with punitivepowers higher than those ordinarily exercised by a Magistrate (videMadar Lethe v. Kiri Banda et al. x). If Mr. Alles recorded some evidencethereafter, Mr. Senaratne could have continued the case from that stagein view of section 292 of the Criminal Procedure Code. I fail to see,therefore, any reason why Mr. Senaratne should not have continued thecase from the stage that Mr. Senaratne decided to try it under section152 (3) [vide Chitaloy and Rao on the Code of Criminal Procedure(second edition) page 1957].
Even if the contention of appellant’s Counsel is sound, the failure ofMr. Senaratne to act in the way suggested by Counsel does not amountto more than an irregularity curable under section 425 of the CriminalProcedure Code as it has not occasioned a failure of justice (videKalinguhamy v. Por oils Appu a). On the facts I agree with the viewexpressed by Mr. Alles that this was a case which could and should havebeen tried by a Magistrate under section 152 (3).
I dismiss the appeals.
GUNAWARDENE et al, Appellants, and VELOO (Inspector of police ) Respondent