( 348 ,
Present: Garvin J.
SINNO' APPU v. RAJAPAKSE
723—P. G. Tctngalla, 22,488
Criminal procedure—Complaint to Assistant Government Agent—Institution of proceedings—Trial of accused by Assistant Govern-ment Agent in capacity as Additional Police Magistrate.
Where criminal proceedings were instituted as the result of acomplaint made to an Assistant Government Agent and ofinstructions issued by him, and the case was tried hv him in hiscapacity as Additional Police Magistrate,—
Held, that the proceedings were irregular.
Garvin, for appellant.
Bjtsnayake, C. C., as amicus ctriae.
117 N. L. R. 33.
( 349 )
November 30,1928. Gabvin J.—
When Mr. Coomaraswamy, the Assistant Government Agent,Tangalla, was on circuit, a complaint was made to him in his Characterof Assistant Government Agent that the present appellant hadthreatened to shoot one Singho Appu. The Assistant GovernmentAgent appears.to have directed a Headman to produce the accusedbefore him, and on September 24, while he was at the village ofMiddeniya, the accused was produced. The Assistant GovernmentAgent is also Additional Police Magistrate at the Police Court ofTangalla. He says that as all parties were present he thought itdesirable to try the case at once. He, therefore, appears to hkveassumed the character of Police Magistrate, recorded the complaintof Singho Appu, framed the charge upon which he tried, and convictedthe accused.
It is said that the Additional Police Magistrate was entitled to sitin any part of the District as the Police Magistrate did in this case,and that these proceedings must be regarded as instituted inaccordance with the provisions of section 148 (1) (d). From thefacts which I have enumerated it is quite clear that these proceedingscame to be instituted as the result of a complaint made toMr. Coomaraswamy in his capacity of Assistant Government Agent,and that the accused was brought up and the further proceedingstaken as a result of instructions issued by him in his capacity ofAssistant Government Agent. The case is almost on all fourswith the case of KanapathipiUai v. Meera Mohammadu1. It is ineffect a ease in which the accused had been tried by the very personat whose instance he was prosecuted.
It is hardly necessary to observe that ii confidence in the adminis-tration of justice is to be preserved even the semblance of unfairness,to which procedure of this nature gives rise, should be avoided.I would set aside the proceedings and send the case back to be triedand disposed of in due course. .
1 S. C. Minutes of September 13. 1928—S. C. No. 476, P. O'. MuttaiUivu,10,083.'
SINNO APPU v. RAJAPAKSE