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Present: Ennis and. Shaw JJ.ABANCHIHAMY v. PETER.
567—P. C. Tang alia, 7,555.
Magistrate also District Judgcr—Magistrate deciding to try case summarilyas District., Judge under- section 152 (3),. Criminal Procedure Code,before , recording complainant's evidence, as required by section'149—Criminal procedure Code} s. 425.
„• Where & Magistrate.: who was also District Judge, decided totry a ease summarily as District Judge under section 152 (8) of theCriminal Procedure Code before taking down the complainant'sevidence as required "by- section 149,—>.-•
Held, that 'the irregularity was not fatal, but that it was onewhich conld be cured under section'425. ■
facts appear fromthe judgment.J. S. J ay award ene, .for the appellant.
July 22, 1918. Ennis J.—
This is an appeal from a conviction tinder section 34S: of the.:Penal Code and a fine of Rs. 100. It was asserted that, the Magia- 'trate had exercised powers under section 152 (3) .of the "Criminal
Abon-chi-tutmy v, Peter
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Procedure Code on a report by the police, and without hearing anyevidence as required by section 149. The case has been reservedby my brother for the consideration of two Judges on account of thedecisions in Heyzer v. James Silva 1 and Mohamado v. Aponsu,2 andfurther the opinion of Went J., in the case of Silva v. Silvaf3that the formulation of an opinion by the Magistrate that the casewas one which might properly be tried summarily, was a conditionprecedent to the trial, without which the Magistrate had no juris-diction.
The question is, whether this irregularity is a fatal one, or onewhich comes within the scope of section 425 of the Criminal ProcedureCode, or is, in fact, really a cage of irregularity which does not occa-sion a failure of justice. In this particular case it has not been shown,without question, that the Magistrate took no evidence, but I donot think it is necessary to send it back for inquiry on the point, asI am of opinion that in any event the irregularity is one curableunder section 425. It seems to me that in these cases it is very.largely a question of fact, and if it is clear from the evidence of the*complainant, subsequently recorded, that the Magistrate can cometo no other conclusion than that the case was one fit and proper forsummary trial, there has been no failure of justice. This caseappears to be such, and for that reason I am of opinion that theproceedings are not vitiated by the Magistrate having decidedto try it summarily before taking evidence, if, in fact, he adoptedthat course.
I agree. I felt some doubt as to the correctness of the opinionI expressed in the case of Mohamado v. Aponsu (supra) that the irregu-larity committed by the Magistrate, in deciding to try the casesummarily before taking the complainant’s evidence, coulcl not becured under section 425 of the Criminal Procedure Code. Myexpression of opinion in that case was an obiter dictum,, because Icame to the conclusion that, for other reasons, the case was not onewhich the Magistrate ought to have tried summarily. In expressingthe opinion I did, I followed the case of Heyzer v. James Silva (supra)decided by Wood Benton C.J., who in a similar case expressed theopinion that the irregularity was a fatal irregularity. I am notaltogether sure that the late Chief Justice was considering whetherthe irregularity could or could not be cured under the provisions ofsection 425, and no mention of that section is made by him in hisjudgment. But whether it is so intended or not, I agree with mybrother Ennis that this is riot necessarily a fatal irregularity, andin the present case it is one which has occasioned no failure of justice.The appeal should consequently be dismissed.
• Appeal dismissed.
1 (1915) 1 C. W. R. 136.* (1915) 1 C. W. R. 170..
9 (1904) 7 N. L. R. 182.
ABANCHIHAMY v. PERERA