( 137 )
CHARLES v. CHARLES et al.
P. G., Badulla, 16,292.Criminal Procedure Code, diopters XVI. and XIX.—Procedure to beadopted where in non-summary inquiry facts disclose offencesummarily triable—Fresh charge—Opportunity for defence.
Where in an inquiry into a complaint of an offence not summarilytriable by a Police Magistrate he finds at the conclusion of the pro-secution that the facts proved against the accused amount to anoffence summarily triable under chapter XIX. of the CriminalProcedure Code, he ought to stay the proceedings as a non-summaryinquiry, make an order formally discharging the accused from thegraver offence, frame a charge as for a summary trial, give theaccused notice that he is on his trial, and afford him sufficient timeto prepare for his defence.
r j THE facts of the case appear in the judgment.
6th July, 1896. – Withers, J.—
Two persons join in an appeal from a judgment convicting themof the offence of voluntarily causing hurt to one KudaduragedaraCharlie on the 13th April last at Balagala, and sentencing each topay a fine of Rs. 20, or in default to one months’ rigorous imprison-ment. As this appeal is taken on a point of law I entertain it.
It appears that appellants and one Kirihata were charged beforethe Magistrate on the 15th April with having voluntarily causedgrievous hurt to one Charlis and cutting him with a knife, and socommitting an offence under the 317th section of the Penal Code.
The Magistrate inquired into the complaint, and at the conclu-sion of the prosocution he seemed to have advised himself that
( 138 )
there was no case of voluntarily causing grievous hurt with a cuttinginstrument against any of the parties charged with that offence,fie seems to have thought that a case was made out against theappellants and Kirihata of voluntarily causing hurt to complainantCharlis with a knife, and bo committing an offence under section 315of the Penal Code, and he framed charges against them under thatsection, and called upon them for their defence. Each made ashort statement and the Magistrate proceeded at once to passjudgment against them, and it is from this judgment that this appealhas been taken.
The procedure adopted by the Magistrate is wrong, and iscalculated to substantially prejudice the accused, and on thisaccount I think the judgment ought to be quashed.
What the Magistrate ought to do in similar cases has been pointedout in the case of Saram v. Weera reported in 1 N. L. R. 95. Assoon as the Magistrate found that facts proved against the appellantsamounted to an offence triable summarily under chapter XIX., heought to have stayed the proceedings, framed a fresh charge, andtried the. case, giving the appellants notice that they were on theirtrial, and affording them sufficient time to prepare for their defence.Proceedings under chapter XVI. do not constitute a trial, but onlyan inquiry.
Again, there should have been an order formally dischargingthem from the graver offence which had been laid to their charge.
CHARLES v. CHARLES et al