.Present:K. D. de Silva J.
S. BOTEJU et al., Appellants, and MOORTHY (S. I. Police), Respondent8. C. 19-20—M. C. Colombo, 33,453
Criminal Procedure Code—Joinder of charges—Different offences committed in sametransaction—Splitting up of charges—Indictable offence—Assumption ofsummary jurisdication by Magistrate—Adequate material a condition precedentfor forming necessary opinion—Sections 152 (3), 178, 180.
Under section. 180 of the Criminal Procedure Code it is not obligatory thatall the offences committed by a person in the course of the same transactionshould be tried at one single trial. The word “ may ” iif the section renderspossible, unless substantial prejudice is caused to the accused, the institutionof separate cases in accordance with the general rule in section 178 whichprovides for separate trials for distinct offences.
Before* a Magistrate assumes summary jurisdiction under section 152 (3)of the Criminal Procedure Code in respect of a non-summary case, there mustbe adequate material available to him to form the opinion that the case is onewhich may properly be tried summarily.
K. D. DE SILVA -T.—Boleju v. Moorthy
./^.PPEAL, from a judgment of the Magistrate’s Court, Colombo.Colvin R. de Silva, with P. B. Thampoe, for the accused appellants.V. S. A. Pullenayagam, Crown Counsel, for the Attorney-General.
Cur. adv. vuU.
January 28, 1954. K. D. de Silva J.—
The two accused-appellants are brothers. Between them and oneDharmadasa, who is also called “ Navaloka Mudalali ” there was consi-derable animosity. Shortly after 8.30 p.m. on November 12, 1952,Dharmadasa was driving his car along the Negombo road. Two otherpersons, namely, Simon and Julis were also travelling in the same car.When the vehicle approached the house of the appellants at Peliyagoda,it is alleged, the appellants rushed on to the road in front of the careach carrying a bomb or dashing-cracker. Then, according to the pro-secution, the 1st appellant saying “ ado Navalokaya, this is to kill you ”flung the explosive at the car. Almost simultaneously the 2nd appellantdid likewise. In the resulting explosion all the three occupants of the carwere injured. Both Dharmadasa and Simon sustained injuries whichendangered life while Julis received some minor abrasions and superficialpunctures.
The two appellants were arrested by the Police the same night and theywere produced before the Chief Magistrate, Colombo, on the followingday. It would appear from the report furnished by the Chief Magistrateat the request of this Court that the appellants were produced beforehim as suspects on a report under Section 131 of the Criminal ProcedureCode filed in M. C. Colombo case No. 33,293. The Magistrate remandedthe appellants till 18.11.52 and on that day the Police filed a plaintagainst them, in this case charging them under Sections 317 and 315of the Ceylon Penal Code in respect of the injuries caused to Simonand Julis. On 25.11.52 the Magistrate recorded the evidence of thesub-inspector of Police, Peliyagoda, and decided to try this case summarilyin terms of Section 152 (3) of the Criminal Procedure Code. On thatoccasion he was informed by the Police that a plaint would be filed incase No. 33,293 charging the appellants with the attempted murder ofDharmadasa and accordingly he sent that case before an AdditionalMagistrate to record non-summary proceedings. The plaint in thatcase was filed on 4.12.52.'
The trial of the present case was concluded on December 23, 1952,and the learned Magistrate convicted both the appellants and sentencedthem to two years’ rigorous imprisonment on the charge uqder Section317 of the Ceylon Penal Code and to six months’ rigorous imprisonmenton each of the 2 counts under Section 315 of the Ceylon Penal Code, thesentences to run concurrently. This appeal is from that conviction.
K. D. DE SILVA J.—Boteju v. Moorlhy
The non-summary case in which the appellants were charged with theattempted murder of Dharmadasa came up for trial before the SupremeCourt on November 30, 1953, and the jury brought in a verdict of notguilty and the appellants were accordingly acquitted and discharged.
At the argument of this appeal Dr. Colvin R. de Silva, the learnedCounsel for the appellants, raised the following two points
The appellants should not have been charged in two cases but
they should have been prosecuted on one indictment.
The Magistrate should not have assumed jurisdiction under Section
152 (3) of the Criminal Procedure Code as there was no materialbefore him at that stage for the assumption of such jurisdietion.
In regard to the first point raised by him, Dr. de Silva conceded that itwas not illegal to charge the appellants in two cases but he contendedthat to do so was unjust as the appellants were prejudiced in their defence.The general rule laid down in Section 178 of the Criminal Procedure Codeis that for each distinct offence there should be a separate charge andevery such charge should be tried separately. That section, however,makes provision for the joinder of charges mentioned, inter alia, inSection 180. According to Section 180, if in the course of the sametransaction more offences than one are committed by the same personhe may be charged with and tried at one trial for every such offence.The words used in this Section are “ may be charged ” and therefore itis clear that it is not obligatory that all the offences committed by aperson in the course of the same transaction should be tried at one trial.That the injuries caused to Dharmadasa, Simon and .Tub's constitutedistinct and separate offences cannot be denied. Therefore the institu-tion of two cases in respect of these offences is in accordance with thegeneral rule, making provision for separate trials for distinct offences,appearing in Section 178, and it also does not offend the terms of Section180 which enable more offences than one committed in the course of thesame transaction being tried together. It is true that it was this oneact of throwing the explosives which caused the injuries on all the threepersons. The evidence in support of all the charges would be the same.That the appellants could have been charged in respect of all the offenceson one indictment must be conceded. That procedure would havebeen more convenient and less expensive to both parties. <It wouldcertainly have been more desirable in the circumstances of this particulartransaction if the appellants were charged in respect of all the offenceson one indictment. But I am not prepared to hold that the institutionof two proceedings was unjust or caused prejudice to the appellantsin their defence as submitted by their Counsel. In both cases the defenceput forward and, in my view, the only defence available was one ofmistaken identity." It was suggested by their Counsel that if the appel-lants had to stand their trial before a higher court after a non-summaryinquiry, they had a better opportunity of knowing how the case stoodagainst them, which would be a distinct advantage in the preparationof their "defence.- Assuming, but not conceding, that the summary trialplaced the appellants at a disadvantage in the matter-of their defence,
K. D. DE STI.VA J.—Boteju v. Moorthy
any such disadvantage, in my view, is not one which could not have beenovercome by due care and vigilance on the part of the appellants and theirlegal advisers.
On 25.11.52, when the Magistrate decided to try this case summarily,the appellants were represented by a Proctor. On that day no objectionwas taken either to a separate plaint being filed in respect of the injuriesto Simon and Julis or to the assumption of summary jurisdiction by theMagistrate to try those offences. If any such objection had been taken,the Magistrate would, no doubt, have given his careful consideration toit. It was only in the address of the defence Counsel at the conclusionof the trial that any reference was made to two plaints being filed. Beforethat stage was reached, probably, it did not enter the minds of thosewho were in charge of the defence that separate trials would in any waybe prejudicial to the appellants. An acquittal by the Magistrate in thiscase is likely to have strengthened the defence in the Supreme Courttrial. That may probably have been the reason why no objection wastaken to the splitting up of the charges or to the assumption of summaryjurisdiction by the Magistrate. The prosecution was entitled in laweither to file two plaints or to charge the appellants in one proceeding.Where two alternative procedures are available in law to the prosecutionand one of them is more desirable than the other, the adoption of thelatter cannot be held to be irregular unless substantial prejudice wascaused to the accused as a result. As no such prejudice arises in thiscase, I hold that the first point raised by the appellants’ Counsel fails.
The second submission made by the appellants’ Counsel, that at thestage the Magistrate assumed jurisdiction under Section 152 (3) of theCriminal Procedure Code there was no material before him to hold thatthe facts were not complicated, merits serious consideration.
It is true that Section 152 (3) does not say on what material the Magis-trate is to base his opinion that the case may properly be tried summarily,but it is undeniable that unless there is adequate material before bim hecannot correctly form that opinion. Indeed, it is very desirablethat when a Magistrate proceeds to act under Section 152 (3) he shouldstate in writing on what material he decides to take that step. Thatwould facilitate this Court, where the assumption of summary jurisdictionby the Magistrate is questioned, in deciding whether or not the Magistrate’sopinion is well-founded. In the Divisional Bench Case of Silva v. Silva x,the applicability of Section 152 (3) came up for consideration. There,in dealing with cases in which this section should not be resorted to,Middleton J. said “ Any case which cannot be tried shortly and rapidlyin point of matter and time, which involves any complexity of law, factor evidence, and double theory of circumstances, a very difficult questionof intention or identity or in which the punishment ought really to exceedtwo years, is one that is not properly triable summarily ”.
Apart from the question of the suitability or otherwise of the applicationof Section 152 (3) in the circumstances of this case, I have come to theconclusion that there was no adequate material available to th® Magistrate—at least the record does not show it—at the time he assumed summary
(1904) 7 N. L. R. 182.
Silva v. Per era
jurisdiction, to form the opinion, that the case is one which may properlyhe tried summarily. The Magistrate proceeded to record the evidenceof the Sub-Inspector of Police and immediately thereafter he decidedto assume jurisdiction under Section 152 (3). Obviously it is on thisevidence of the Sub-Inspector of Police that he formed the opinion thatthe case was one which may properly be tried summarily. That evidenceruns to only six lines and is entirely colourless. It is not possible to sayon that evidence that any complicated question of fact would not arise 'in the case. It was held in the case of Simon Wijeratne v. Ratnayake 1that a Magistrate was entitled to take proceedings under Sectirin 152 (3)on a perusal of a Police report (B report) furnished in terms of Section121 (2) of the Criminal Procedure Code. In the present case there is noreference to such a report, nor is one filed of record. Therefore, I holdthat there was not sufficient material before the Magistrate to enablehim to assume summary jurisdiction under Section 152 (3). Nor can itbe rightly said that the facts are not complicated. Indeed, the verdictof the Jury in the non-summary case supports the contrary view. Inthese circumstances, the most desirable course to follow is to direct theMagistrate to. take non-summary proceedings in the case. I set asidethe convictions and sentence and order the Magistrate to takenon-summary proceedings against the appellants. “
Sent back for non-summary 'proceedings.
S. BOTEJU et al., Appellants, and MOORTHY (S. I. Police ), Respondent