096-NLR-NLR-V-19-BURAH–v.-SINNIAH.pdf
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Present• Wood Renton C.J..1917.
BURAH v. STNNIAH.33—P. G. Gampola, 10,831.
Jurisdiction—Unlawfulgaming inestate—European superintendent of
estate—Prosecution in Courtby Malay police officer—Exclusive
jurisdiction of Village Tribunal.
The fact that a person was engaged in unlawful gaming in a houseon an estate, of which an European was at the time . superintendent,does not oustthejurisdictionof the VillageTribunal inrespect of
such offence.
The fact that a “ native” police officer appears in support of acharge of unlawful gaming does not oust the Police Court of itsjurisdiction and confer jurisdiction on the Village Tribunal.
“ I cannot believethat theLegislaturecouldhave intended to Tnn.y>»
the jurisdiction.ofthe PoliceCourt onthe one hand andof Village
Tribunals ontheother dependent ontheaccident ofnationality
of the particular officer who was appearing to support the charge.”
facts appear from the judgment.
Bartholomeusz, for sixth accused, appellant. '
Drieberg, for the respondent.
Cur. adv. vult.
January 29, 1917. Wood Renton C.J.—
ie accused-appellant was charged, with twenty-three other **persons, in the. Police .Cout of Gampola, with having been engagedin^ unlawful gaming in a house in the lines of Hunukotuwa estate,Nawalapitiya, of which Mr. R. K. Bowie is superintendent. The
1 3 Taunt. 365.
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PoliceMagistrate convictedhim, and sentencedhim to pay a fine
Wood°* ®,s-20- The appellant’s proctor took the pointthat, in view of the
RbhtonC.J. provisions of the Tillage Communities Ordinance, 1889,1 section 28,Btirah v. the offence was friable by the Village Tribunal, and that, therefore,Sinmaih under section 84 of the same Ordinance the Police Court had nojurisdiction to try the case. The learned Police Magistrate sur-mounted this difficulty by holding that Mr. Bowie, the superinten-dent of the estate on which the gaming took place, was a “ party ” tothe proceedings within -the meaning of section 28 of the Ordinanceof 18891 or was at least an“ aggrieved party, ”and that, therefore,
as hewas not a “ native ”as defined in section5 of the Ordinance,
the case was triable, not by a Village Tribunal, but by the PoliceCourt itself. I should not be prepared, as at present advised, touphold this ruling. Mr. Bowie was no doubt interested in theprosecution, inasmuch as he had control of the lines in which theunlawful gaming was carried on. But he was not, in my opinion,a “ party ” to the proceedings in any real sense of the term, and itmust be observed that section 28 says nothing about “ aggrieved■ parties ” or “ aggrieved persons. ”
Mr. Allan D’rieBerg, however, as counsel for the respondent,took what*is, in my opinion, a more formidable objection to the juris-diction. of a Village Tribunal over the present case. The prosecu-tion was conducted in the name of a Sub-Inspector of Police, who isa Malay, and who is, therefore, a “ native ” as defined by section3 of the-Village Communities Ordinance, 1889.1 The appellant’scounsel contended that this circumstance at once attracted the ex-clusive jurisdiction of the appropriate Village Tribunal. To thatargument Mr. Drieberg Replied that the prosecution was really oneby the Police as a Department, and that in such cases the nationalityof the particular officer of police who represented the Department forthat purpose was immaterial. No authority directly governing.,this question was cited to me. But Mr. Arulanandan, as amicuscuria, kindly called my attention to a case—No. 747/748, P. C. 'Anuradhapura, 41,1002—in which it has been held that a police head-man is not a police officer within the meaning of section 54 of:the Police Ordinance, 1865.3 In the absence of judicial decisions,-the question has, therefore, to be decided on principle. In myopinion Mr. Allan Drieberg’s contention is correct. The fact that a;prosecution is in the hands of the regular police itself indicates thatthe offence is not a trivial one, and I cannot believe that the Legis-lature could have intended to make the jurisdiction of the PoliceCourt on the one hand and of Village Tribunals on the other,dependent on the accidental nationality of the particular officerwho was appearing to support the charge.
I have already formally dismissed this appeal. The above aremy reasons for doing so.
Appeal dismissed.
i No. 24 of 1889.* S. C. Min., Oct. 24,-1913. a No. 16 of 1865.