AKBAR J.—Ibrahim Saibo v. Aberan.
1931Present: Akbar J.
IBRAHIM SAIBO v. ABERAN et al.
764-765—P. C. Kurunegala, 20,645.
Jurisdiction—Case referred, by Government Agent from Village Tribunal toPolice Court—Jurisdiction, of Police Magistrate to try offence of gaming'under Village Tribunal rules—Ordinance No. 9 of 1924, s. 64.
A Police Magistrate has no jurisdiction to try the offence of gamblingas defined under Village Tribunal rules even where the case has beentransferred to the Police Court by the Government Agent acting undersection 64 of the Village Tribunal Ordinance.
The offence of gaming may be established by the evidence of indiciaof guilt, which create the statutory presumption under section 10 ofthe Ordinance, provided that the indicia are corroborative of positiveindependent evidence.
A PPEAL from a conviction by the Police Magistrate of Kurunegala.
H. V. Perera, for accused, appellant.
A. Gnanaprakasam, for complainant, respondent.
November 2.- 1931. Akbar J.—
The petitioner and eight others were charged in the Village Tribunalwith committing the offence of gambling punishable under the VillageCommittee rules, but the Assistant Government Agent transferred thecase to the Police Court of Kurunegalh. An offence under the VillageTribunal Ordinance is committed when anybody gambles for a stake,and an offence under the Gaming Ordinance, No. 17 of • 1889, can onlybe committed when “ unlawful gaming ” is committed as defined inthe Ordinance. The latter offence is much more restricted than theformer, unlawful gaming being only committed when there is an act ofgambling for a stake in a. place to which the public have access whetheras of right or not or when it is committed in a common gaming place asdefined in the Ordinance. Although a Police Magistrate had no juris-diction to try the offence of gambling under the Village Committeerules, the Assistant Government Agent was right in referring the caseto the Police Court of Kurunegala, but this only meant that the PoliceCourt had jurisdiction to try the offence under the Gaming Ordinance,No. 17 of 1889, and not under the Village Committee rules. Althoughthis was pointed out to the learned Police Magistrate before the beginningof the trial by counsel for the complainant, the Police Magistrate charged
the accused in the alternative under the Gaming Ordinance and alsounder rule 49 of the Village Committee rules. This he was not clearly,entitled to do. In the course of his judgment although he convictedthe accused under the Gaming Ordinance he seems to have thoughtthat he had jurisdiction to try the offence under the Village Committeerules and that the two offences were more or less similar. When thejudgment was read to me, I was of opinion that the conviction was wrongbut as another accused had filed papers for the revision of these pro-ceedings and as the learned Police Magistrate had stated in his judgmentthat he accepted “ without hesitation ” the evidence of the Peace Officerand the two witnesses he had called, I dealt with this case in revision.It is open to me in appeal to affirm the conviction if there is enoughevidence to justify the conviction under section 4 of the Gaming Ordi-nance. Even though the Magistrate may have made the mistake in lawwhich I have stated above, the learned Police Magistrate stated that heaccepted the evidence of the complainant and his two witnesses. Thatbeing so, there was evidence to prove that the accused who are membersof two different communities were gambling on the occasion in questionat night for stakes and that cards were found there and also money;a packet of cards, gunny bags, and money were produced. It has beenheld by the Supreme Court in the case of L. O. Modder v. A. M. Moham-mado Lebbe1 that evidence under the Gaming Ordinance may be estab-lished by indicia of guilt which create the statutory presumption undersection 10 of the Ordinance, provided that those indicia are corroborativeof positive independent evidence. In that, particular case too therewas a number of Sinhalese men and Moormen. Further cards werefound on the premises and some of the inmates escaped on the entranceof the police as happened in this case. On the authority of thiscase and in view of the fact that the Magistrate believed the prosecution
case I must uphold the conviction and dismiss the appeal.
IBRAHIM SAIBO v. ABERAN et al