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SINCLAIR v. BURKE.D. C., Regalia, 19.939.
Criminal breach of trust—Value of property misappropriated—Jurisdic-tion of Police Court to try summarily such cases—Section 191 ofthe Penal Code.
It is improper on the part of a Police Magistrate to hear anddetermine summarily a case of criminal breach of trust in whiohthe value of the property misappropriated exceeded Rs. 6,000 andthe manner of misappropriation revealed a systematic course ofgross dishonest}'.
Such a case was one that ought to have been sent to the Attorney-General for his consideration and selection of Court of commitment.
rT''HE accused was charged with criminal breach of trust in^ respect of 17,510 lb. of tea valued at Rs. 6,000, which he, asteamaker on Dotel-oya tea estate, received into his custody butdid not account for.
Mr. T. J. de Alwis, who was Acting District Judge and PoliceMagistrate of Kegalla, recorded as follows:—“ I think this case“ may properly be tried summarily by me under section 152, sub-“ section 3, of the Procedure Code. Accused is informed that he“ is to be tried summarily by me under section 152. He agrees to“ it. Charge drawn by me (under section 391 of the Penal Code)“is read. Accused says he has nothing to say.” The witnesseshaving been examined, Mr. Alwis convicted the accused andsentenced him to three months’ rigorous imprisonment and afine of Rs. 1,000, under section 391. The judgment was signed,“ T. J. de Alwis, Acting District Judge and Police Magistrate.”
The accused appealed.
Domhorst, for appellant.
26th April, 1899. Withers, J.—
In this case the applicant has been found guilty of the offenceof criminal breach of trust under section 391 of the Penal Code,and of the commission of that offence as a servant. Though this
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is a serious offence rendering the offender liable to fine andApril 26. imprisonment of either description for a term which may extendWithers, J. to seven years, the old and the new Criminal Prodedure Codesdesignate both the District and Police Courts as competent to trythis offence, whatever may be the value of the property which inbreach of trust has been dishonestly misappropriated. Mr. DeAlwis, who tried this case, signs his judgment as District Judgeand Police Magistrate, but I take it that he has tried the casesummarily as a Police Magistrate. When the accused was broughtbefore him, he informed him that he intended to try him summarilyunder section 152 (3) of the Criminal Procedure Code, and herecorded his opinion that the case might properly be tried summarily’by him.
Now, considering that the accused was charged with twospecific offences of criminal breach of trust in his capacity asservant, one occurring in December last year and the other inJanuary this year ; considering that the value of the property saidto have been criminally misappropriated in December exceededRs. 4,000, and the value of the. property said to have beencriminally misappropriated in January, 1.899, amounted to nearlyRs. 3,000 ; and considering that the accused is liable for eachoffence to seven years’ rigorous imprisonment as a maximumpunishment and to a fine as well, I am utterly unable to under-stand how Mr. De Alwis could come to the opinion that this wasa case proper to be dealt with summarily.
The sentence of three months’ rigorous imprisonment and theimposition of a fine of Rs. 1,000 seems to me to be a very inade-quate sentence, if these charges are true, for they indicate asystematic course of gross dishonesty ; nor can the case be a verysimple one if it took so learned a counsel as Mr. Domhorst somethree days to master.
I have no hesitation in saying that this was not a proper caseto be tried summarily. It was eminently a case for the Attorney-General to consider and name the Court of commitment, ifht thought charges of the kind had been made out. A trialin a District Court under a committal, and a summary trialin that Court without a committal, are two very differentthings, for in the former case the Attorney-General has hadthe proceedings before him, he has settled and approved theindictment, and the prosecution is conducted by properlyinstructed counsel.
For these reasons I quash the conviction and direct theMagistrate to forward the proceedings to the Attorney-Generalfor his orders thereon.
SINCLAIR v. BURKE