A. G. DE MEL, Appellant, and R. C. DE NEISE (Inspector of police ), Respondent

150-NLR-NLR-V-55-A.-G.-DE-MEL-Appellant-and-R.-C.-DE-NEISE-Inspector-of-police-Respondent.pdf

ROSS C.J.—De Mel v. De Neise
537
1954 Resent: Rose C.J., Gratiaen J., Gunasekara J., Sansoni J.,Fernando A.J.A. G. DE MEL, Appellant, and R. C. DE 2STEISE*(Inspector of Police), Respondent
S. C. 1,286—M. G. Colombo, 28,870
Post, Ojfice Ordinance (Cap. 146)—Sections 71 (1) and 88 (1)—Applicability of Sections
11 and 152 (3) oj Criminal Procedure Code.
’ A Magistrate who is also a District Judge has power under Section 152 (3)of the Criminal Procedure Code to assume jurisdiction to try an offence punish-able under Section 71 (1) of the Post Office Ordinance and which, by reasonof Section 88 (1) of that Ordinance, is triable in a District Court. The referenceto the District Court in Section 88 is permissive and not exclusive.
Section 152 (3) of the Criminal Procedure Code is a provision contemplatedby proviso (6) of Section 11 of that Code.
This ■appeal-rfrom a? judgment of the Magistrate’s Court, Colombo,was referred under Section 48 of the Courts Ordinance to a Benchof five Judges.,
M. M. Kumarakvlasingham, with J. G. Thurairatnam, for the accusedappellant.
T.S. Fernando, Q.G., Solicitor-General, with Douglas Jansze andV. S. A. PvMenayagam, Crown Counsel, for the Attorney-General.
Gur. adv. wit.
July 14, 1954. Rose C.J.—
This appeal, <iomes before us on a reference under Section 48 of theCourts Ordinance. The question that has been reserved for our decisionis whether a Magistrate who is also a Distript Judge has power underSection 152 (3) of the Criminal Procedure Code to assume jurisdictionto try *>n offence punishable under Section 71 (1) of the Post OfficeOrdinance and which, by reason of Section 88 (1) of that Ordinance, istriable in a District Court.
In this matter there has been no certification by the Attorney-Generalunder the proviso to Section 88, and the relevant part of that Section,as far as the present matter is concerned, reads as follows :—r»..
“ Offences under this Ordinance which, by reason of the amount
of the penalties with which they are punishable are. not within thesummary jurisdiction of a Magistrate’s Court, may be tried in aDistrict Court, and such Courts, in cases where the punishment assignedto such offences exceeds the ordinary jurisdiction of a District Court,may award in respect of such offences so much of the punishmentassigned thereto as District Courts are by law empowered to award.”
538
HOSE C.J.—De Mel v. De Nvise
Learned Counsel for the appellant contends that the above section“ mentions ” the District Court as being the appropriate <£>urt for thetrial of offences contra Section 71 of the Ordinance within the meaningof Section 11 of the Criminal Procedure Code, the relevant provision ofwhich reads as follows :
“ Any offence under any law other than the Penal Code sh'all whenany court is mentioned in that behalf in such law he tried by suchcourt.”
He relies on Attorney-General v. SinnetJiamby et dlA It is to be notedthat the matter under consideration in that case was whether a Magistratewho is also a District Judge could exercise his powers under Section 152 (3)of the Criminal Procedure Code in regard to an offence contra Section58 (1) of the Ceylon (Parliamentary Elections) Order in Council, 1946.Section 58 reads as follows :
“ Every person who—
(a) commits the offence of …. shall be guilty of a
corrupt practice and shall on conviction by a DistrictCourt be liable ….”.
The learned Solicitor-General contends that “ mentioned in thatbehalf” in the first sentence of Section 11 of the Criminal ProcedureCode means mentioned to the exclusion of any other, court. Uponthis view of the matter there would seem to be no conflict between thecase cited above and Chmawardene v. Vythialingam 2, which held that on aproper construction of Section 43 of the Telecommunication Ordinancethe jurisdiction of a Magistrate under Section 152 (3) of the CriminalProcedure Code remains unaffected in every case wheft < the Attorney-General has not sought to exercise the special power conferred on himby the proviso to Section 43.
It is apparent that the provision with regard to the court of trial inSection 58 of the Elections Order in Council is mandatory and that ittherefore follows that the first sentence of Section 11 of the CriminalProcedure Code is applicable, whereas the learned Judge in the caseunder the Telecommunication Ordinance considered that the referenceto the District Court in that Ordinance was permissive and not exclusive.While the Telecommunication Ordinance is not under our direct con-sideration in the present matter, we would observe that we see no reasonto dissent from his reasoning.
To come to Section 88 of the Post Office Ordinance with which weare here concerned, we consider that the reference to the District Courtin this Section too is permissive and not exclusive. bIt follows from this.
(1948) 49 N. L. JR. 385.
(1950) 43 O. L. W. 75.
Kumarasingka v. AndirisJiamy
539
that the first sentence of Section 11 of the Criminal Procedure Code isinapplicable# and the matter is governed by the remainder of the Section,which reads as follows :—
“ When no court is mentioned it may be tried by the SupremeCourt or by any other court mentioned in that particular scheduleprovided that:
….
Except as hereinafter provided no Magistrate’s Court
shall try any of such offences …
) •
That being so, there can be no doubt—and it is not suggested to thecontrary by learned Counsel for the appellant—that Section 152 (3)is a provision contemplated by sub-section (6) above.
For these reasons the question under reference must be answered inthe affirmative and the appeal is dismissed.
Gbatiaen J.—I agree. „
Gunasekara J.—I agree.
San soot J.—I agree.
Fernando A.J.—I agree.
Appeal dismissedL