NIHIL.L J.—Mediwaka v. Gunasekere.
1940Present : Nihill J.
MEDIWAKA v. GUNASEKERE.656—M. C. Matara, 23,649.
Criminal Procedure Code—Non-summary oflfence—Decision to try offencesummarily—Magistrate should decide at outset of inquiry—Discretionimproperly^ exercised—Criminal Procedure Code, s. 152 (3).
Under section 152 (3) of the Criminal Procedure Code a Magistrate,who is also District Judge, should exercise his discretion as to whether ornot the accused should be tried summarily at the outset of the inquiry.
Where a period of four months had elapsed between the appearance tosummons and the assumption of jurisdiction and where by that time thebulk of the evidence had been led,—
Held; that the discretion had not been properly exercised and that theirregularity was not cured byl section 425 of the Criminal Procedure Code.Queen v. Uduman (4 N. L. R. 1) followed.
^ PPEAL from a conviction by the Magistrate of Matara.
R. L. Pereira, K.C. (with him C. V. Ranawake and S. W. Jayasuriya)for accused, appellant.
Nihal Goonesekere, C.C., for complainant, respondent.
Cur. adv. vult.
February 21, 1940. Nihill J.—
This is an appeal from a conviction for cheating—offences under section403 of the Penal Code. The value of the property in respect of which itwas alleged the offence had been committed did not exceed Rs. 200 andthe offences could therefore have been tried summarily by the Magistratein the first instance, except for the fact that counts were also includedembodying charges under section 392 relating to the same transaction.
He therefore started non-summary proceedings and then, after thebulk of the evidence for the prosecution had been led, assumed jurisdictionas a District Judge and proceeded to try the case summarily in thatcapacity under section 152 (3) of the Criminal Procedure Code. He didnot record any reasons for so doing.
It has been argued before me that the Magistrate assumed jurisdictionso late in the case that his action was highly prejudicial to the accusedand that on this ground alone the conviction cannot stand.
I have not considered the merits of this appeal apart from this preli-minary point. Mr. Nihal Goonesekere for the Crown was content to takeup the position that if an irregularity had occurred if was curable by theapplication of section 425 of the Criminal Procedure Code. Beforeconsidering that aspect of the matter, however, I must first considerwhether the Magistrate did in fact go outside the proper ambit of section152 (3) in assuming jurisdiction of a District Judge when he did.
It will perhaps be convenient to state the facts in some detail. OnJanuary 24, 1939, report was made to the Magistrate under section148 (1) (b) alleging that the appellant and one other (since acquitted) haddishonestly drawn certain sums from the Assistant Government Agent at
NIHIL,L. J.—Mediwflka v. Gunasekere.
Matara for the purpose of paying for the lighting of a lamp at Hakmanamarket during the period March-August, 1937. The report alleged thatin fact no lamp was lit during the period. The appellant was named asthe Chairman of the Village Committee. Summons was issued and theaccused appeared before the Magistrate on February 10, when the chargeswere read over to them in accordance with the provisions of section 156.A remand on bail was granted until February 27 and the evidence for theprosecution was started. The preliminary inquiry had begun. Itcontinued with various adjournments until May 30, when the Magistratedecided to try the case summarily as a District Judge and trial was fixedfor June 15. Up to this date nine witnesses had been called, their cross-examination having been reserved. On June 15 these witnesses wererecalled for cross-examination. Their evidence-in-chief was not takende novo, although further evidence-in-chief was elicited from some ofthem. After two further witnesses had been called, the prosecution was -closed.
After hearing evidence for the defence the Magistrate convicted theappellant on July 13 on two counts relative to section 403 and sentencedhim to two terms of six months’ rigorous imprisonment to run con-currently. It should be noted here that the conviction was in respect tothe offences which the Magistrate could have tried summarily in the firstinstance.
Now, is there a stage in a preliminary inquiry beyond which theMagistrate cannot retrace his steps and elect to try the case himself as aDistrict Judge? In Queen v. Uduman1, Bonser C.J. quashed a convictionon the ground that the serious offence of housebreaking by night was notoije which a Magistrate should try summarily. In that case the Magistratehad heard all the evidence for the prosecution and the Chief Justice in thecourse of his judgment at page. 3 said: —
“ Even if the offence was one which he could try summarily, which itwas not, it seems to me that it was late for him to exercise the powergiven him by section 152. It is quite clear from the whole ofChapter XV., in which that section occurs, that the Magistrate is tomake up his mind whether he will try summarily as District Judge ornot after hearing evidence under section 149. It is not competent forhim to take all the evidence for the prosecution as a committingMagistrate, and then, after various remands, say suddenly: ‘All thistime I have not been acting as a committing Magistrate, but trying thecase as. District Judge ’. That is what it comes to.”
In 1904 the scope and effect of section 152 (3) came before a Bench ofthree Judges but the question as at what stage of the proceedings theMagistrate should act or beyond what stage he could not act was not con-sidered. See Silva v. Silva1. Their Lordships in that case held againstthe view that the jurisdiction was confined to Magistrates who were alsothe District Judge of the District and they held also that the exercise ofthe discretionary power of Magistrates was not conclusive and could bereviewed by the Supreme- Court on appeal. As a corollary to that theyindicated that Magistrates should give reasons for their opinion that theoffence might properly be tried summarily.
» 4 N. L. R. 1.* 7 N. L. R. 182.
NIHIL.L J.— Mediwaka v. Gunasekere.
The question as to the stage at which the Magistrate’s decision shouldbe taken did not arise probably because in the case which formed thebasis of the submission to the full Bench it had been taken at a very earlystage, that is to say, when the Magistrate had partly heard the evidence ofthe complainant.
In the same year however Lay^rd C.J. sitting alone held in Punchiralav. Don Cornells', that it was too late for the Magistrate to change hismind after he had taken the evidence of the complainant in full but hestated that it might be different “ if he had recalled the complainant afterhe had made up his mind to try the case as District Judge
This case together with Queen v. Uduman (supra), is authority for theview that the assumption of the jurisdiction should take place at an earlystage. I would m'ention, however, that in the present case as the accusedappeared before the Magistrate on summons, it was not imperative inview of amendment to section 149 (now section 151) effected by section 5of Ordinance No. 13 of 1938 that he should take the evidence of the■complainant or some material witness or witnesses before issue of thesummons.
Under section 149 of the Code as before amendment the Magistratewould have had to have heard evidence forthwith before issuing hiswarrant as the report had disclosed a non-summary offence. Now underthe Code as amended, the Magistrate has a discretion in such cases eitherto issue a warrant in which case he must examine the complainant or.some material witness or witnesses on oath, or to issue a summons. Ifhe decides on the latter course it is again in his discretion whether he shallor shall not forthwith take evidence on oath. The question I think ariseswhether this amendment in procedure has not to some extent altered theposition as it stood when Bonser C.J. and Layard C.J. gave the judgmentsI have cited. It seems to me that the view expressed in these judgmentsamounts to this—that the Magistrate must make up his mind very early,in fact before the real inquiry in the presence of the accused begins. Oncethe inquiry is under-weigh it should not be turned into a trial.
Now in cases such as the one we are considering I think it can reasonablybe urged that the Magistrate must take some evidence after the accusedhas answered the summons before he can be in a position to exercise hisdiscretion. If that be so it is doubtless difficult to draw a line and to saythus far and no further. Nevertheless I consider it important that theprinciple should be maintained that proceedings which have continued forsome time on one basis cannot in fairness to the accused be suddenlyturned into proceedings of a different nature.
It must be remembered that the assumption of a Judge’s power by aMagistrate is not one that the accused can resist. In that sense it differsfrom what might be termed the converse procedure provided for bysection 166. Under that section the Magistrate assumes no additionaljurisdiction, he remains a Magistrate and tries a non-summary casesummarily because, having regard to the character and antecedents of theaccused, the nature of the offence and all the circumstances of the case, hethinks it expedient to do so. In sub-section (3) of that section it is
* 8 x. L. s. 58.
N1HILL J.—Mediwaka v. Gunasekere.445
expressly provided that he may make up his mind to try the case sum-marily during the hearing of the case and after he has become satisfied bythe evidence that it is a proper one for- the application of the section. Butthe accused cannot possibly be prejudiced because the Magistrate cannotmove without his consent.<
In section 152 the Magistrate can so move and it is important thereforethat Magistrates should not apply the section in a way under which evenan appearance of prejudice to an accused person may be manifested. Ido not consider therefore that the amendments to Chapter XV introducedin 1938 warrants any substantial change in the view hitherto held withregard to section 152. A Magistrate must address his mind to the matterat the outset of the inquiry and quickly form his opinion thereon, becausethat is the only way in which an appearance of prejudice can be avoided.It will not do for him to meander through the evidence as an inquiryMagistrate until at a late stage it is driven into his consciousness that it isa case which he might have tried himself from the start.
In the present instance nearly four months elapsed between the appear-ance to the summons and the assumption of the jurisdiction and by thattime the bulk of the evidence for the prosecution had been recorded, andwhen he did exercise his power he gave no reasons.
I have no hesitation therefore under all these circumstances in holdingthat on this occasion he exercised his discretion improperly.
Now there remains the question whether this irregularity is curableunder section 425. If prejudice has in fact been caused to the accusedthen clearly it is not. On the face of it such prejudice may be difficult todetect. The accused who was represented made no objection at the timeand he has been convicted only of those offences which the Magistratecould have tried summarily as a Magistrate and he has not receivedsentence greater than the Magistrate as a Magistrate could have imposed.
It has been urged for the appellant however that a Magistrate whenconducting a preliminary investigation has a character different from thatof a trial Judge and my attention was drawn to section 392 (2). I mustconfess I find it difficult myself to reconcile the provisions of that sectionwith the amendments introduced by Ordinance No. 13 of 1938. How aMagistrate can conveniently “ conduct the prosecution ” and at the sametime address himself judicially to the question as to whether the casewarrants committal is not easy to see. The position was of courseformerly quite otherwise as committal then lay only on the instructions ofthe Attorney-General. Whilst I do not believe for a moment that thisprovision of the law did in fact affect the Magistrate’s attitude of judicialimpartiality I cannot overlook that it is open for the appellant to say thatup till May 30, the Magistrate was, to put it at its lowest, acting as aquasi-prosecutor. After that date the evidence in chief of the prosecutionwitnesses was not taken afresh, so we are left with the position that theevidence upon which the Magistrate ultimately convicted as a trial Judgewas evidence which had been extracted from the witnesses by his diligenceas an inquiring Magistrate. That being so I cannot overlook the possi-bility of prejudice having been caused and I decline therefore in thisinstance to invoke the aid of section 425.
WIJEYEWARDENE J.—Perera v. Brown & Company.
The case must go back for rehearing before another Magistrate. If thecharges are confined to those counts which can be tried summarily theMagistrate can of course dispose of the matter himself.
With regard to the other accused who was acquitted my order will notaffect him. He was acquitted for reasons which would have been equallygood as against his committal for trial and it would not be fair that heshould be placed in jeopardy again.
Case remitted for rehearing.
MEDIWAKA v. GUNASEKERE