144-NLR-NLR-V-49-ABDUL-AZIZ-Appellant-and-PODIAPPU-Respondent.pdf
BASNAYAKE J.—Abdul Azie v. Podiappu.
573
1948Present: Basnayake J.
ABDUL, AZIZ, Appellant, and PODIAPPU, Respondent.
S. C. 19—M. C. Matara, 63,499.
Village Communities Ordinance—Offence also triable by Magistrate—Directionby Government Agent for trial by Magistrate—Sufficient authority—Section 93.
The direction by a Government Agent under section 93 of the VillageCommunities Ordinance that an offence should be tried before a Magis-trate’s Court is sufficient authority for the Magistrate to issue process with-out the institution of fresh proceedings in terms of section 148 of the CriminalProcedure Code.
^^PPEAL from a judgment of the Magistrate, Matara.
M. H. A. Azeez, for the accused, appellant.
Boyd Jayasuriya, Grown Counsel, for the Attorney-General.
Cur. adv. vult.
May 18, 1948. Basnayake J.—
The accused-appellant (hereinafter referred to as the appellant) wason March 18, 1946, along with another, charged before the VillageTribunal of Karin da with the offence of using criminal force on oneWeligama Liyana Arachchige Podiappu. On April 11, 1946, the AssistantGovernment Agent of Matara directed under section 93 of the VillageCommunities Ordinance that the offence be tried before the Magistrate’sCourt of Matara. His direction is as follows :—
“ The Magistrate, Matara.
Having read the proceedings of V. T. Kirinda Criminal Case No. 1981and the report of the President V. T., I hereby direct under theprovisions of section 93 of the V. C. Ordinance (Chapter 198), that thiscase be tried before the Magistrate’s Court of Matara.”
570
BASNAYAJC.E J.—Abdul Aziz v. Podiappu.
Oil the receipt of that direction the learned Magistrate issued notice onthe parties and in due course tried the offence. He found the appellantguilty and sentenced him to a term of six weeks’ rigorous imprisonment.
Learned counsel for the appellant urges that the conviction is badin that the proceedings before the Magistrate were not properly institutedin any one of the ways prescribed by section 148 of the Criminal ProcedureCode. He submits that a Magistrate has no jurisdiction to try and deter-mine a case which has not been instituted in the manner prescribed by thatsection. I am unable to uphold the contention of learned counsel.Section 93 of the Village Communities Ordinance leaves no room for doubtthat the direction of the Assistant Government Agent is sufficient autho-rity for the Magistrate to try the offence. The section reads :
“ 93. It shall be lawful for the Attorney-General, or the Solicitor-General, or for any Government Agent having jurisdiction in the villagearea in question in the following cases :—
in the case of any offence which, but for the provisions of this
Ordinance, would be cognizable by a Magistrate’s Court ;
in the case of any offence against a by-law made or deemed
by virtue of any written law to have been made under this
Ordinance, which is also an offence under any other Ordinance,
if he shall consider that such offence may more appropriately be triedbefore a Magistrate’s Court, to direct such offence to be tried before aMagistrate’s Court having local jurisdiction, and if necessary tostay the further trial of such offence before any Village Tribunal orCommittee ; and such Magistrate’s Court shall accordingly try suchoffence.”
The direction which the Assistant Government Agent is empowered tomake coupled with the authority conferred by the concluding words of thesection “ such Magistrate’s Court shall accordingly try such offence ”, tomy mind removes all necessity for the institution of fresh proceedings inthe prescribed manner.
Learned counsel for the appellant and learned Crown Counsel whoappeared as amicus curiae inform me that they have not been able to traceany decision of this Court on this point. I myself have not come acrossany case which deals specifically with the question now before me. ButI find that the cases of Cassim v. Juanis1 and Attorney-General v. Cornelia 8proceed on the assumption that the direction of the Government Agent issufficient authority for a Magistrate to issue process and proceed to trythe case in due course of law. I hold that the direction of the AssistantGovernment Agent which I have quoted above was sufficient authorityfor the Magistrate to proceed in this case as he has done. The appealis dismissed.
Appeal dismissed.
l(2573) 1 Balasingham's Notes of Oases, p. IS.*(1911) 14 N. L. R. 316