014-SLLR-SLLR-1985-V2-ENIS-PERERA-v.-OFFICER-IN-CHARGE-PILIYANDALA-POLICE.pdf
Sri Lanka Law Reports*
. [1985] 2 Sri LR.
70
ENIS PERERA
v.OFFICER-IN-CHARGE, PIUYANDALA POUCE
COURT OF APPEAL.
A. G. DE SILVA. J. AND B. E. OE SILVA. JCA 364/84 – M.C. Moratuwa 12205.
MARCH 29.1985.
Jurisdiction of Magistrate's Court to try offence falling exclusively within the jurisdictionof Primary Court – Mischief – Judicature Act. No. 2 of 1978 section 33 (1) and (3).section 61 and regulations made thereunder – Mischief punishable under section 410of the Penal Code – Order for compensation – Section JO. 17 (4) of the Code ofCriminal Procedure Act.
The accused was charged with committing mischief to vegetables of the value ofRs. 362.25 – an offence punishable under section 410 of the Penal Code. After trial hewas convicted of this offence and ordered to pay compensation in a sum of Rs. 280.
The main questions were whether the Magistrate's Court had jurisdiction to try thiscase when the offence lay within the exclusive jurisdiction of the Primary Court andwhether the order for payment of compensation was justified.
Held-:
(1} The Regulations made by the Minister under section 61 read with section 33(1) of .the Judicature Act give exclusive original criminal jurisdiction in respect of offencesunder section 410 of the Penal Code where the loss or damage does not exceed fivehundred rupees to the Primary Court but not in the instances fatting under section33(3).
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CAPerera v. OIC, PHiyandala Police (H. A. G. De Silva, J.)
The Magistrate of Moratuwa had jurisdiction to entertain and try the offence in theinstant case as a Primary Court does not appear to have been established at Moratuwaand the Magistrate's'Court exercises that jurisdiction.
The order for payment of Rs: 280 as compensation is justifiable under section 17(4)of the Code of Criminal Procedure Act.
APPEAL from the Magistrate's Court of Moratuwa.
L. de Alwis for accused-appellant.
Sunil de Silva, Additional Solicitor-General with S. J. Gunasekera. S.C. for therespondent
Cur. adv. vuft.'
May 17. 1985.
A. G. DE SILVA, J.
The accused in this case was charged with causing mischief to thevalue of Rs. 362.25: to vegetables in the custody of one GeekiyanageSomapala, an offence punishable under section 410 of the PenalCode. After trial the accused was convicted of this offence and wasordered by the learned. Magistrate to pay compensation in a sum ofRs. 280 to the.virtual complainant. The accused has appealed fromthis conviction and sentence. At the hearing of this appeal the learnedtrial Judge's findings of fact were not canvassed. The teamedAdditional Solicitor-General, with learned Counsel for the accusedagreeing, submitted that the' conviction of the accused is a validconviction though the exclusive original criminal jurisdiction in respectof the offence of mischief punishable under section 410 of the PenalCode purports to have been given to a Primary Court except in caseswhere the loss or damage exceeds Rs. 500 in value.
Section 33(1) of the Judicature Act, No. 2 of 1978 (which wascertified on 2.11.1978 and came into-operation on 2nd July 1979vide G.G.E. 40/16 of 2.7.74) states that-
"Every Primary Court shall have exclusive original criminaljurisdiction in respect of such offences as may, by ?egulation,-beprescribed by the Minister and the Minister may in that regulationspecify in the case'of each offence the limitations, restrictions andconditions in respect of each such offence."
Sub-section (3) enacts that-
"Anything • in this section shall not preclude a Magistrate fromconvicting and passing sentence on any person found guilty aftertrial of any offence specified in sub-section (1)".•
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[1985] 2 Sri L. R.
The purport of subsection (1) and (3) would be that whHe theexclusive jurisdiction to hear offences specified by the Minister in theregulations made under subsection (1) would be vested in the PrimaryCourt,.the Magistrate's Court would not be precluded from convictingand passing sentence in respect of persons found guilty after trial ofany offence specified in the regulation by Minister under subsection
if the facts of the case establish such an offence though theaccused may have been originally charged with an offence notspecified in such regulations and in respect of which a Primary Courtdid not have jurisdiction. For example if an accused is charged with anoffence of committing mischief of property valued at Rs. 750 undersection 410 of the Penal Code but the evidence led at the trialdiscloses that the value of the property damaged is only Rs. 300,though exclusive jurisdiction to try offences under section 410 of thePenal Code where the damage does not exceed Rs. 500 has beengiven under subsection (1} to the Primary Court the Magistrate undersubsection.(3) would not be precluded in such a case of convicting theaccused after trial.
Section 10 of the Code of Criminal Procedure Act, No. 15 of 1979which was an enactment that came into operation on the same date•as the Judicature Act, No. 2 of 1978 came*into operation,'hasenacted that-
'Subject to the other provisions of this Code any offence underthe Penal Code whether committed before or after the appointeddate may be tried save as otherwise specially provided for in anylaw-
fa) by the High Court; or
by a Magistrate's Court where the offence is shown in theeighth column of the First Schedule'to be triable.by a. Magistrate's Court.’
According to the Eighth Column of the First Schedule to (he Code ofCriminal Procedure Act No. 15 of 1979, the Court other than the HighCourt by which an offence under section 410 of the Renal Code istriable in the Magistrate's Court. Therefore since both the JudicatureAct and the Code of Criminal Procedure Act came into operation onthe same date viz. 2nd July 1979 by Gazette No. 40/16 of15.06.1979, the provisions of the Code of Criminal Procedure Act dopot take precedence over the provisions of the Judicature Act and in
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Perera v. QIC, Piliyandala Police (H. A. G. De Silva, J )
73
any event the Judicature Act being one of substantive law while theCode of Criminal Procedure Act is one dealing with procedure; theprovisions of the Judicature Act must necessarily prevail.
Section 10 of the Code of Criminal Procedure Act states-
may be tried' save as otherwise specifically
provided for in any law
Section 2 paragraph (gg) of the Interpretation Ordinance (Cap. 2)states-
* Written law shall mean and includeregulations made
or issued by any person having authority under any statutory orother enactment to make or issue the same in and for Ceylon or anypart thereof"
Section 61 (1) of the Judicature Act states-
“The Minister may make regulations for carrying out or givingeffect to the principles and provisions of this Act and for mattersrequired by this Act to be prescribed or in respect of whichregulations are authorized by this Act to be made'.
The regulations purported to have been made under Section 61 ofthe Judicature Act No. 2 of 1978 read with section 33 of that Act andpublished in Government Gazette Extraordinary No. 43/4 of02.07.1979 states that every Primary Court shall have exclusiveoriginal Criminal jurisdiction in respect of the offences punishableunder the provisions of the law set out in Column 1 of the Schedulehereto subject to the limitations, restrictions and conditions set out inthe corresponding entry in Column II of that Schedule.
Column 1 of the Schedule enumerates inter alia section 410 of thePenal Code and the corresponding entry in Column II states-
"Except where loss or damage exceeds five hundred rupees'.
Therefore the regulation made by the Minister under section 61read with section 33 of the Judicature Act which gives exclusiveoriginal criminal jurisdiction in respect of offences under section 410of the Penal Code where the loss or damage does not exceed fivehundred rupees to the Primary Court must be construed as a provisionin "any law" within the meaning of section 10 of the Code of CriminalProcedure Act. Therefore the offence with which the accused wascharged being an offence under section 410 of the Penal Code andtthe damage being only Rs. 362.75, would be triable exclusively by a
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11985] 2 Sri L R.
Primary Court having jurisdiction over the place of offence viz . 32/2.Kalugahawatta Road, Makuluwa, Piliyandala. I do not agree with thesubmission of learned Counsel that the regulation made by theMinister under section 61 and with section 33 of the Judicature Acthas given jurisdiction to the Primary Courts in respect of the offencesenumerated in Column 1 of that Schedule only as far as it is incompliance with the provisions of section 10 of the Code of CriminalProcedure Act resulting therefore in a jurisdiction concurrent with thejurisdiction set out in the Schedule to the Code of Criminal ProcedureAct. In my view the offences set out in the regulations made by theMinister are exclusively triable by the Primary Court except in theinstances falling within sub-section 3 of section 33 of the JudicatureAct. The word 'exclusive' in section 33 of the Judicature Act mustnecessary be subject to the jurisdiction given by section 9 of theJudicature Act to the High Court 'to hear, try and
determine.all prosecutions on indictmentin
respect of – (a) any offence wholly or partly committed in Sri LankaThe interpretation is supported by the fact that section 33(3) of theJudicature Act refers only to the Magistrate's Court. Any otherinterpretation would lead to an absurdity in that where the exclusivejurisdiction to try offences under section 314 of the Penal Codeexcept where the hurt is caused to a public officer etc. is given to aPrimary Court, if on a charge for murder the High Court, would not beable to convict the accused on the jury bringing in a verdict of guilt foran offence under section 314 of the Penal Code.
There does not appear to be a Primary Court established atMoratuwa and the Magistrate's Court of Moratuwa exercises thatjurisdiction, hence the Magistrate of Moratuwa would have had thenecessary jurisdiction to entertain and try this offence. Therefore theconviction of the accused by the Magistrate of Moratuwa must beupheld. The Order for payment of Rs. 280 as compensation to thevirtual complainant could be justified under section 17(4} of the Codeof Criminal Procedure Act. I therefore affirm the conviction and theorder for compensation imposed on the accused and dismiss theappeal.
E. DE SILVA, J. – I agree.* Appeal dismissed.