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Present: Shaw J. and De Sampayo J.
PODI APPU v. PEDRIC SHTNO.
P. C. Balapitiya, 44,646.
Police Ordinance, s. 54—Power of Magistrate to punish complainant for bringingfalse charges—Non-summary inquiry.
■ A Magistrate can punish a person, under section 54 of the PoliceOrdinance, 1865, for bringing a false charge only in cases which hehas jurisdiction to try summarily. He cannot punish under thissection a complainant in a non-summary case.
THIS ease was referred to the Supreme Court by the learned PoliceMagistrate, under section 353 of the Criminal Procedure Code.
E. T. de Stlva, for the accused.—In a non-summary case the orderof the Magistrate is not final; the case may be re-opened. It wouldbe' anomalous for a Magistrate to punish, under the Police Ordinance,a witness for the prosecution for giving false evidence when theAttorney-General may re-open the case and commit the accused fortrial.
“ Hear " means to hear and determine (see Stroud). Hencesection 54 has no application to non-summary cases.
Garvin, S.-G., appeared on notice from the Supreme Court. Hecited P. C. Colombo, 3,707,* and P. C. Colombo 1,888.*
Cur. adv. milt.
January 25, 1918. Shaw J.—
This case raises a question of law, referred by the Magistrate forthe opinion of the Supreme Court.
The complainant charged certain persons with robbery andcausing hurt, under section 382 of the Ceylon Penal Code. TheMagistrate having instituted non-summary proceedings against theaccused persons, and having heard the evidence of the complainantand his witnesses, discharged the accused, being of opinion that thecharge was a deliberately false one. He, thereupon, called upon thecomplainant to show cause why he should not be punished underthe provisions of section 54 of the Police Ordinance, 1865.
The complainant showed no grounds on the merits, but it wascontended on his behalf that the Magistrate had no power underthat section to call upon him to show cause why he should not be
* 8. C. Min., Sept. 22,1914.* S. O. Min,, Oct. 7,1913.
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pod* Apquv. Petmo, Sirmo
convicted, because the charge before the Magistrate was not onewhioh he could try summarily, and Rex v. Jayawickrema 1 was citedin support of the contention.
The Magistrate, nevertheless, convicted the complainant, andordered him to pay a fine of Bs. 50, in default one week's simpleimprisonment, being of opinion .that the case referred to was wronglydecided, and referred the matter for the opinion of this Court.
I am of opinion that the conviction is wrong, and cannot besupported. The case referred to followed a decision of Bonser C.J…in Gajoor v. Carolis,2 in which the point was carefully considered.The construction of the section is by no means clear from difficulties,but it would appear that the only person who can punish summarilyunder the section is “ the Magistrate by whom the case is heardThese words do not seem to me to be applicable to non-summaryproceedings, in which a Magistrate merely holds an inquiry andrecords evidence with a view of further proceedings in a higherCourt, if such are directed by the Attorney-General. As was pointedout in the course of the argument at the time Gajoor v. Carolis 2 wasdecided, the inquiry in non-summary proceedings might have beenbefore a Justice of the Peace, and, indeed, was only taken by aMagistrate in. his capacity of Justice.
The Penal Code contains ample provisions for punishing offencesof this nature under the ordinary procedure for the trial of offences,and I do not think that a summary procedure of the nature providedfor by the section under consideration should be extended beyondthe scope its language'clearly justifies.
I would accordingly set aside the conviction, the question of thelegality of which is referred to us.
De Sampayo J.—I agree.
13 S. C. D. 90.
* 1 Browne 108•
PODI APPU v. PEDRIC SINNO