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WIKRAMASOORIYA v. APPUSINHO.P. C., Balapitiya, 14,269.
Criminal Procedure Code, e». 175, 238, and 242—Power of Police Magietrateto try a lower offence, while a charge for a higher offence beyond hiejurisdiction remained formally undisposed of—Power of “ Attorney-General" under ss. 241-243.
Complaint was made against accused for intentional insult undersection 484 of the Penal Code and criminal intimidation under section486. The Magistrate heard evidence, formulated charges under boththese sections, and forwarded proceedings to the Solictor-Generalunder section 175 of the Criminal Procedure Code. On the return ofthe record to the Police Magistrate, he proceeded to try the accusedsummarily for the offence under section 484 only, and convicted him of it.At this trial the complainant and his witnesses confined themselves tothat part of their story which applied to this offence and omitted therest of it:
Held, that such procedure was irregular.
The intention of section 238 of the Criminal Procedure Code, asamended by Ordinance No. 22 of 1890, is to prevent the Magistratebeing satisfied that the evidence disclosed an offence which he had nojurisdiction to try, and having framed a charge for the graver offencewas not at liberty to dispose of the minor offence.
Observations of the Chief Justice on the impropriety of gettingwitnesses to say only what will square with the particular charge whichthe Court has determined to try.
Under sections 241,242, and 243 the “ Attorney-General ” may followone of these courses : (1) If he is satisfied that the proceedings ate inorder, he may nominate the Court of trial. * (2) If be thinks that nofurther proceedings diould be taken, he may direct the discharge of theaoeused. (8) If ha finds the evidenoe defective, he may require theMagistrate to take further evidenoe.
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HE facts of the case are folly set forth in tne judgment ofhis lordship the Chief Justice.
Pereira, for accused appellant, cited Christian v. Pedro, 2 C. L.R.,p. 107, and contended that it was irregular on the part of thePolice Magistrate to have tried the accused for the lower offence,dropping the charge formulated in respect of the higher offencewhich was triable only by a higher court. Such a procedure wasinconsistent with Ordinance No. 22 of 1890, section 238.
Jayawardene, for respondent. The case cited can be differen-tiated from the present case. There the facts on which theMagistrate convicted the accused of affray were necessary toconstitute the graver offence of rioting. When the facts whichmake up the minor offence do not enter into the constitution ofthe graver offence, the Magistrate can try the minor offence andcommit the accused for trial on the graver offence. The test is tosee whether the verdict of the Magistrate could be pleaded inbar—as autrefois acquit or autrefois convict—to an indictmenton the graver offence. In this case, the Magistrate has in no wayadjudicated on the facts which go to make up the graver offence.Hence, the verdict of the Magistrate cannot be pleaded as a pleaof autrefois acquit or autrefois convict.
His Lordship desired to hear the Solicitor•Qeneral upon thepoints involved.
Ramandthan, S.-Q., appeared for the Crown,—
It was open to the Police Magistrate to discharge the accusedfrom the higher charge. The framing of the charge shall not,indeed, take place except when there are sufficient grounds forcommitting the accused, as provided in section 169, but here, forthe sake of convenience and economy of time, the charge wasframed even though the evidence was insufficient, and the caseforwarded to the Solicitor-General, who returned it, apparently withthe opinion that it was not worth while committing the case to ahigher court upon the charge laid under section 486 in view of thefact that the threat to cause death was made in self-defence, whenthe complainant took up a stick to strike the accused. If a formalorder of discharge under the hand of the Attorney-General isheld to be necessary bo as to justify the Magistrate’s order of dis-charge, it may be produced nunc pro tunc. [Bonsbr, C.J.—Ifthat be so, “ all the proceedings taken npon such inquiry shall“ cease and be determined,” and the proceedings in respect of thelesser offence would also cease]. No, because “ such inquiry ” insection 242 would refer only to the “ complaint, information, or“ charge” in respect of the higher offence. It would not affect the
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1896. proceedings on which the lesser offence rests: The spirit oTSeptember SB. 8ecti0n 238 has not been violated, as the conviction for the lesserBonsib, C.J. offence was not arrived at with the object of withdrawing thehigher offence from a higher tribunal. [BON8ER, C.J.,—Butwhat justification has the Magistrate for recording, at the laterinquiry or trial, only so much of the evidence as relates to thelower offence ?] He might have thought it unnecessary toburden the record with evidence irrelevant to the lower charge,which had been dropped.
26th September, 1895. BOWSER, C.J.—
In this case the appellant was charged and convicted of theoffence of insult under section 484 of the Penal Code, and was sen*tenced to undergo one month's imprisonment. He has appealed1against that decision, and claims that he ought to be tried by ahigher Court. Now, the facts of the case are these : a complaintwas filed against him charging him, first, with insult under section484, and secondly, with criminal intimidation under section 486,the threat being to cause death. The latter was an offence whichthe Magistrate had no power to try. The Magistrate entertainedthe complaint and heard the evidence of the complainant andhis witnesses, who all swore to the fact that appellant drew aknife and threatened to kill the complainant, and was onlyprevented from using the knife by the interference of his brother.
The Magistrate, after hearing the evidence, was apparently ofopinion that there were sufficient grounds for committing theaccused for trial, for he framed charges nnder section 484 andsection 486—he framed a double charge—and then, as required bysection 175 of the Code, forwarded the proceedings to the “Attorney-General,” in order to be instructed by him as to the Court to whichthe committal should be made. Now, the dnties and powers ofthe Attorney-General on receipt of such proceedings are set outin section 241 and the following sections. There appear to bethree courses The first is, if he is satisfied that everything isin order, to specify the Court which iB to try the case, whether itis to be the District Court or the Supreme Court. If, however, heis of opinion that no further proceedings should be taken in thecase, he may make an order in writing, signed by himself, direct-ing the accused to be discharged from the matter of the complaint,information, or charge. If he takes that course, section 242provides that all proceedings shall cease*and be determined, andthat makes an end of the case. The third course is that if he is ofopinion that there is a criminal offence disclosed, but that theevidence is defective, he may order the Police Magistrate to take
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farther evidence in order to supplement the defect. These 1886.appear to be the three courses open to him.September SB.
What was done by the Attorney-General in this case does not Boiresa, CJ.appear. There is no record of it. Bnt when the parties appearedagain before the Magistrate he proceeded to try the accusedsummarily on the first of the two charges, the charge under section484, and with the result I have mentioned. The appellant saysthat that course was irregular, and that having been charged withan offence under section 486, one of the three courses to which Ihave referred ought to have been taken; and that it was notcompetent for the Court, while the graver charge was still hangingover his head, to deal with the lesser charge.
He also relied upon section 247 of the Criminal Procedure Code,
(which provides for the Attorney-General designating the Courtbefore which the case is to be tried, and requires that it must beeither the Supreme Court or a District Court; and he says that theAttorney-General has no power to designate the Police Court, ashas been done in this case. However that may be in this case,there is no evidence that the Attorney-General did direct it to betried in the Police Court, and we must deal with it as if theMagistrate on his own initiative imposed on himself the duty ofdealing with the lesser charge.
It was also urged that the course taken was inconsistent withsection 238 of the Ordinance No. 22 of 1890. That sectionprovides that where a Police Court is dealing with an offencewhich is not triable summarily, “ it shall not be at liberty to“ disregard material parts of the evidence and convict for a lesser“ offence, and so withdraw the case from the proper tribunal, but“ that it shall be the duty of such Court to stop further proceedings“ under that chapter and to proceed under chapter XVI.,” that is,it must take proceedings with a view to commit the accused for. trial by a Superior Court.
The Solicitor-General argued that the words “ to withdraw the“ case from the proper tribunal ” meant that the section only appliedto cases where there was a deliberate intention on the part ofthe Magistrate to withdraw the case from the proper tribunal.
I do not think that the words necessarily bear that sense. Theintention of that section is to prevent what was done in thiscase, and I am of opinion that the Magistrate being satis-fied that the evidence disclosed an offence, which he had nojurisdiction to try, and having framed a charge for the graveroffence, was not at liberty to dispose of the minor offence. Now,one evil of such a course appears very clearly in these proceedings.
In the first proceeding the complainant and all his witnesses spoke
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1896. of the threats of the accused to use a knife, and stated how ft*September 98. va8 reBtrained by his brother from carrying his threat intoWithkbs, J. execution. On the second hearing the complainant and hiswitnesses suppressed the whole of the evidence relating to thispart of the case, so as to make the affair appear different fromthe reality. It is said that that evidence was irrelevant to thecharge then being tried, and it is suggested that the complainant’sproctor abstained for that reason from bringing out this evidence.
It seems to me that this has a serious bearing on the adminis-tration of justice. If witnesses are to be taught to say only whatwill square with the particular charge which they are told is tobe established, there will be an end to all confidence in theadministration of justice.
One of the great crying evils in our Courts is the way in whichwitnesses suppress the truth, and tell stories which are made tri*fit their ideaB of what is required by their own interest, or by theinterests of persons for whom they appear to give evidence; andanything in the course of practice or procedure which would inany way encourage such a state of things is to be stronglyreprobated. Therefore, even if such a course of procedure weretechnically correct, I should say that it was not for the interestsof justice that it should be adopted, and sitting as a Court ofAppeal I should discountenance it. It seems to me that theproper order to make would be, that the conviction be quashed,and that these proceedings go back to be dealt with on the chargesalready framed by the Magistrate, leaving it to the Attorney-General to designate the Court to which the accused should becommitted for trial.
Withers, j.—The Chief Justice’s judgment has my heartyconcurrence.
The course pursued by the Magistrate not only defeats thewise policy of section 238 of the Ordinance No. 22 of 1890, but iscalculated to stifle truth.
Mr. Jayawardene urged that this offence of insult in the cir-cumstances disclosed was quite distinct from the offence ofcriminal intimidation under section 426, and that in consequencethe Magistrate has power to deal with it summarily.
I am againBt him on that point, as I consider that the offenceswere so minutely connected as clearly to embrace one and thesame transaction.
It would be at once unfair and impolitic to try this man beforethe Police Magistrate for inBult on one day. and before a SuperiorCourt for intimidation another day. A Court which is competent
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to try the higher offence should try the lesser at one and the sametime.
Speaking for myself, I remain of the opinion which I expressedin the case of Christian v. Pedro Appu (reported in 2 C. L. if.,p. 197), and which is accurately put in the head-note as follows :—
Where, after evidence, an accused is charged by a Police Magistrate for anoffence not summarily triable, and is not discharged from the matter of thecharge, it is not competent for the Police Magistrate, while such charge isstill pending, to formulate another charge for a lesser offence arising out ofthe same circumstances, and to try the accused summarily thereon.
September 96.Withkbs, J.
WIKRAMASOORIYA v. APPUSINHO