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SIRINERIS v. JAMES.
P. C., Galle, 10,068.
Robbery with hurl—Penal Code, s. 330—Magistrate's disbelief of robbery
Conviction under s. 3Io—Irani of jurisdiction—Criminal Procedure Code,
A lesser offence cannot be selected for trial, while the evidencediscloses a graver one.
If, on a complaint of robber; with hart, a Police Magistrate disbelievesthe robber;, it is not open to him to try the accused summarily forcausing hurt. The proper course is to discharge the accused as regardsthe robbery, and then proceed afresh summarily.
’HE complaint in this case was that the accused demanded of
X the complainant some money to drink, and on being toldthat he had none, the accused seized him by the waist cloth androbbed him of Rs. 10.20 and a letter, and also beat him with hishand and stahbed him on the cheek.
The medical officer found the wound to be an incised super-ficial wound, one-fourth of an inch long on the left cheek.
After hearing several other witnesses, the Police Magistrate(Mr. H. R. Freeman) convicted the accused of voluntarily causinghurt and sentenced him to a fine of Rs. 60, of which Rs 35 wasmade payable to the complainant, and in default to three months’rigorous imprisonment. As to the charge of robbery, the PoliceMagistrate found “ the accused was drunk, and the charge isprobably exaggerated.”
The accused appealed.
Bawa, for appellant.—Only a Court of competent jurisdictioncan deal with this offence. The original charge discloses robbery,which is only triable by a Court higher than the Police Court. This-case commenced as a preliminary inquiry, and then the Magistratedisbelieved the robbery and tried the accused for hurt with knifeonly, and convicted him under sectiop 315. It is not open for thePolice Magistrate to proceed apainst the accused for a lesser offencewhen the charge alleges a greater. The Magistrate’s disbelief bf the-robbery does not finally dispose of the charge of robbery, whichcan only be dealt with by the Supreme Court. That charge,therefore, still hangs over the accused’s head.- No subsequentcharge was framed, and presumably the trial went on the original'charge of robbery. [Moncreiff, J.—But the summons to-accused only mentions hurt with fcnife. ] That does not materially
( )1901. alter the state of affairs. The original charge by the complainantApril 23, has not been finallydisposed of. The Magistrate is not
obliged to frame a special charge, but if he does not, the chargehe proceeds on is the original charge in the complaint. (InWikramasuriya v. Appvsinha. 1 N. L. R. 298), the Chief Justicesays that it is not open for a Police Magistrate to try for a lesseroffence when a greater is disclosed, and while the graver chargeis still hanging over the accused. Had the Magistrate dischargedthe accused on the graver charge of his own judgment, or by orderof the Attorney-General, the charge would have been done with,but the Magistrate’s mere disbelief does not dispose of it. He hasno jurisdiction to exercise his belief or judgment on the matter,
• but he ma$ conclude that the evidence is so very meagre that theaccused is entitled to a discharge, and discharge him. Here hehas not discharged the accused on the graver charge, which,therefore, still stands. Saram v. IVeera, 1 N. L. It. 98; Hendrikv. Jamee, 1 ('. L. It. 21; Mathes v. Sanmudiv, 2 C. L. It. 161 allbear out. the contention that a lesser offence cannot be selected fortrial while a graver is disclosed or alleged. While the gravercharge has not been disposed of, the accused was at no stage toldhe was being tried summarily. [Moncreiff, J.—Suppose a manwas charged with an offence triable by a Police Magistrate, and in the.course of the evidence the Police Magistrate found the witnessesdeposing to a more serious offence not summarily triable by him,is it your contention that the Police Magistrate should stop,proceed non-summarily, and forward the case to the Attorney-General?] Yes, the moment a non-summary offence is alleged thePolice Magistrate has no summary jurisdiction. Section 192 (2)says* so. As soon as a non-summary offence is disclosed theMagistrate can only do either of two things:discharge the
accused on the charge, or refer the case to the Attorney-General, ifa prima facie case is made out. The more serious charge is stillundecided (the disbelief is not a legal decision), and the accusedcannot be tried for the lesser offence before that is tried.[Moncreiff, J.—1 think you are right.]
The conviction is quashed. The case is remitted to the PolicefMagistrate to be dealt with as a non-summary charge, not triableby his Court.
SIRINERIS v. JAMES