054-NLR-NLR-V-36-DE-SOYZA-v.-APPURALA.pdf
276
De Soyza v. Appurala.
1934
Present: Dalton J.
DE SOYZA v. APPURALA.
382—P. C. Mullaittivu, 12,359.
Criminal Procedure—Complaint by Assistant Government Agent—Plaintentertained by Assistant Government Agent as Police Magistrate—Trialbefore another Magistrate—Irregularity.
An Assistant Government Agent made a written report to a PoliceMagistrate under section 148 (1) of the Criminal Procedure Code that anoffence had been committed by the accused. The same officer asMagistrate entertained the plaint and ordered the issue of process.
DAtrTON J.—De Soyza v. Appurala.
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The trial took place before another Magistrate who proceeded toexamine the Assistant Government Agent as complainant and to framea fresh charge.
Held, that the proceedings were irregular.
^^PPEAL from a conviction by the Police Magistrate of Mullaittivu.
A. Rajapakse (with him D. J. R. Gunawardane), for accused, appellant.
M.F. S. Pulle, C.C., for Crown, respondent.
Cur. adv. vutt.
August 29, 1934. Dalton J.—
In this case the accused has been convicted on a charge of abetting oneKandatage Kaurala to give information to a public servant, namely, theAssistant Government Agent of Mullaittivu, that the Ratemahatmaya ofVavuniya South had felled Crown timber, which.information he knew orbelieved to be false, intending thereby to cause the Assistant GovernmentAgent to use his lawful power to the injury or annoyance of the saidRatemahatmaya.
The appeal is based upon the alleged irregularity of the proceedings, itbeing alleged that the complainant himself had taken part as Magistratein part of the trial of the accused.
The record shows that the complainant was described as “ G. de Soyza,Assistant Government Agent, Mullaittivu". He makes a written reportto the Magistrate that an offence has been committed by the accused,under the provisions of section 148 (b) of the Criminal Procedure Code.The Magistrate to whom he makes the report is in fact himself, and in that,latter capacity he receives his complaint made in the capacity of AssistantGovernment Agent. Having received the report on February 2, he, asPolice Magistrate, directed that process do issue against the accused.
Summons was accordingly issued, and on February 9 accused appearedbefore Mr. de Soyza, the person who had made the complaint against him,in his capacity as Magistrate. Mr. de Soyza charged him from the plaintand took his plea, which was that he was not guilty. Accused also gavethe names of his witnesses. Mr. de Soyza then fixed the trial for Febru-ary 24, stating it would be before another Magistrate.
On February 24 another Magistrate, Mr. R. Y. Daniel, was on theBench. Accused was present with his counsel, who stated he was notready as accused’s witnesses were not present. The Magistrate, however,decided to go on with the case, and the complainant Mr. G. de Soyza wascalled as the first witness and affirmed. It would appear from the recordthat Mr. de Soyza was also conducting the prosecution on this date.Before any evidence was given by him, it is noted on the record thatMr. Daniel found an irregularity in the proceedings, the irregularity being
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DALTON J.—De Soyza v. Appurala.
that accused had been charged from the plaint. Before charging himfrom the charge sheet the Magistrate states he would record the evidenceof the complainant. Mr. de Soyza was then examined and made astatement on affirmation. It is not stated why this was done, but it issuggested by Crown Counsel before me that it was a proceeding by thecomplainant and by the Magistrate respectively under the provisions ofsection 148 (1) (a) and section 149 (1) of the Criminal Procedure Code.In that case it is suggested that Mr. Daniel began the case de novo withall the necessary proceedings denoted in chapter XV. of the CriminalProcedure Code.
At the conclusion of the statement of Mr. de Soyza, Mr. Daniel at onceproceeded to charge the accused from the charge sheet. It does notappear if he had himself drafted the charges after the statement ofMr. de Soyza was made or whether they had been drafted before he cameinto the case. It is clear, however, after Mr. de Soyza’s statement wastaken that nothing further was done, for example, in the way of direct-ing process to issue against any accused person, as provided for insection 151 (2) of the Criminal Procedure Code.
After accused was charged by Mr. Daniel on February 24, it being latein the afternoon, the case was postponed for another day to be fixed, thetrial to be resumed before yet another Magistrate. Mr. Daniel hadpreviously that day dealt with another case (P. C. No. 12,348), in which thesame counsel had appeared for the accused, and noted there why it wasdesirable another Magistrate than himself should try the case. I gatherthose reasons applied to his order that the trial in this case be continuedbefore another Magistrate.
On March 20 the trial was resumed before Mr. S. Rodrigo, who had beenspecially appointed to hear this case and P. C. No. 12,348. EachMagistrate appears to have resumed the case where the other left off, withthe 'one exception mentioned above. A proctor now appeared for theprosecution, but accused was undefended. The latter asked for anadjournment because his counsel and proctor were absent, but this requestwas refused by the Magistrate, as he had been specially appointed tocome from Jaffna to hear these two cases. This fact must doubtless, inthe circumstances, have been in the knowledge of the defence. The trialthen proceeded.
There was practically no cross-examination of the witnesses for theprosecution, although one or two questions were put to one or two of thewitnesses. At the close of the case for the prosecution the Magistratehimself called two witnesses and then he called upon the accused for hisdefence on, the first count in the charge. He acquitted him on the secondcount. There is no record that he explained to the accused the nature ofthe evidence against him or complied with the provisions of section 296of the Criminal Procedure Code, by calling his attention, since he wasnot represented by counsel or proctor, to the principal points in theevidence against him. Accused gave evidence himself not meeting any
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points raised by the prosecution but merely stating that up to date hehad done nothing wrong and that he was a man of position and family.
The grounds urged by counsel before me on behalf of appellant are two.The first is that the proceedings are irregular and cannot stand, since inthe first part of the case at any rate the first Magistrate who was on theBench was also complainant and prosecutor. The evidence of Mr. deSoyza gives in detail the inquiry he had held and the part he played asAssistant Government Agent in the institution of the proceedings againstaccused.
On this first point Crown Counsel urges that although Mr. de Soyza wasthe complainant and was also on the Bench as Magistrate to receive andtake whatever action might appear fit to him on that complaint,nevertheless when Mr. Daniel, the second Magistrate who took part inthe proceedings, came into the case, he commenced the proceedingsde novo. Therefore, he argued that any irregularity in the proceedingsbefore Mr. de Soyza did not extend to the proceedings before Mr. Daniel.I regret I am unable to agree. The proceedings before Mr. de Soyza areall part of the record in the case in appeal before me, and 1 am unable tosee that any fresh case was instituted before Mr. Daniel. If any freshproceedings had been instituted before him, it would have been doneunder the provisions of section 143, and the proceedings before Mr. deSoyza would necessarily be no part of this case. As it stands, on hiscomplaint after the exercise of his judicial discretion his direction thatprocess do issue and the proceedings of February 9 are all part of the casewhich was continued by the other two Magistrates. If the proceedingson the record prior to the appearance of Mr. Daniel on the Bench are to betaken to be another case than the one he heard, then the case heard byMr. Daniel and Mr. Rodrigo has no proper starting point and is clearlyirregular. Whether or not the fact that the Magistrate who received thecomplaint was satisfied that the complaint, his own, disclosed a summaryoffence influenced the Magistrate who eventually convicted the accused Iam unable to say. If I cannot say it did not do so, then clearly theaccused may have been prejudiced by the irregular proceedings. Mr. deSoyza as Magistrate should of course never have allowed proceedings tocommence before him or on his order against the accused on a complaintmade by him in another capacity. He cannot act as Judge in his owncase. Although there is no reason to suggest his action was due toanything but lack of experience or perhaps an inability to keep hisexecutive duties apart from his judicial functions, I am unable todisassociate that portion of the case in which he played the part ofMagistrate from the subsequent proceedings in the same case before theother two Magistrates. The proceedings are bad from and including theorder of February 2 that process do issue, for under the circumstancesstated the irregularity affects all the subsequent proceedings.
The second point refers to the alleged non-compliance by the Magistrate,who eventually convicted the accused, with the provisions of section 296to which I have referred, to the prejudice of the accused. The recorddoes not show that the provisions of that section were observed by the
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Magistrate, and. Mr. Pulle cannot satisfy me that he did observe them- 'In view of my decision, however, on the first point I need not decide whatflows on the facts in this case from this failure to observe the provisionsof this section.
The appeal must be allowed for the reasons I have given, the convictionbeing quashed.
Quashed.