Dharrharatne v. Inspector of Police, Hatton
Present: Weerasooriya, J.BHABHARATNE, Appellant, and INSPECTOR OF POLICE,HATTON-, Respondent
8. G. 1,143—M. C. Hatton, 8,643
GriminaZ Procedure Code—Section 1SZ (3)—Improper assumption of jurisdictionthereunder—Accused acquitted in appeal on facts—-Must the case be sent bandsfor non-summary inquiry ?
YV here the evidence is insufficient to justify the conviction of an accused -appellant, the Supreme Court may refuse to send the case back for non-summary investigation even if the trial Court had, despite the complicatednature of the evidence, improperly assumed jurisdiction under section 152 (3)of the' Criminal Procedure Code and tried the accused summarily.
WEERASOOJRTYA, J-—Dharmaratne v. Inspector of Police, 'Hatton 205
-^‘^-PPEAL from a judgment of the Magistrate’s Court, Hatton.
Jr. F. N. Qratiaen, Q.C., with E. L. P. Mendis, for accused-appellant.George Candappa, Crown Counsel, for Attorney-General.
Cur. adv. wilt.
^September 17,1958. Weerasooriya, J.—
The accused was convicted by the Magistrate of Hatton on two charges-of criminal breach of trust in respect of a sum of Rs. 1,321 *68 andAbetting an unknown person to commit the offence of forgery, andsentenced to a term of nine months’ rigorous imprisonment on each■charge, the sentences to run consecutively. The present appeal is tiledagainst these convictions and sentences.
[His Lordship then considered the evidence and, after setting aside the-convictions, continued:—]
■' There remains to be considered the submission made by Mr. Gratiaen,without prejudice, however, to the merits of the appeal on the facts, thathaving regard to the complicated nature of the evidence in-this case theMagistrate improperly assumed jurisdiction under section 152 (3) of. the-Criminal Procedure Code and tried the accused summarily. LearnedCrown Counsel too adopted this submission and asked that the case be^ent back so that non-summary proceedings be taken against the accusedin respect of the charges brought against him.
While I am in agreement with this submission, it does not seem to me-that the wrong decision of the Magistrate to deal with the case summarilynecessarily had the effect of taking away from him the jurisdiction to tryit and that this Court is left with no alternative but to remit the case for anon-summary investigation in accordance with law. In Perera v. Thedias(Inspector of Police)1 my brother Gunasekara refused to send the case backfor a non-summary investigation where the evidence was insufficient tojustify the conviction of the accused. Although the circumstances inwhich he made that order were not quite the same as in the present case,I would respectfully adopt that case as a precedent for not sending thecase back. I am also of the view that in the present case the appropriate-order to make is to acquit the accused. I set aside the convictions of theAccused and the sentences passed on him and I acquit him.
1 (1955) 57 N. L. B. 368.