, KEUNEMAN J.—Feldano v. The Magistrate, Anuradhapura.
1941Present : Keuneman J.
FELDANO v. THE MAGISTRATE, ANURADHAPURA el al.
In re Writ of Prohibition against the Magistrate ofAnuradhapura in M. C. Anuradhapura, 4,742.
Motor lorry—Conviction of driver—Proceedings against owner for suspensionof licence—Motor Car Ordinance, No. 45 of 1938, s. 159 (1).
Where, on the conviction of the driver of a motor lorry, proceedings aretaken against the owner under section 159 (1) of the Motor Car Ordinanceto show cause against an order suspending the licence of the lorry,—
Held, that the Court was not bound to proceed against the owner inthe same case in which the driver was convicted.
HIS was an application for a Writ of Prohibition against the Magis-trate of Anuradhapura.
G. Thomas (with him A. C. Alles), for petitioner.
H. W. R. Weerasooriya, C.C., for first respondent.
Cur. adv. vult.
May 21, 1941. Keuneman J.—
This Writ of Prohibition is sought under the following circumstances : —On August 28, 1940, one Amaris Silva, driver of lorry No. Z 9102 in
M.C. Anuradhapura, case No. 4,647, was convicted under section 122 ofthe Motor Car Ordinance. On September 13, 1940, application was madein these proceedings to the Magistrate for a notice on the petitioner, beingthe owner of the lorry, to show cause why the licence of the lorry shouldnot be suspended in terms of section 159 (1) of the Ordinance. Whilethat matter was pending, the petitioner moved for a Writ of Prohibition inthis Court.
The point urged before me was that the Magistrate had no jurisdictionto initiate or continue these proceedings. Counsel for petitioner urged
KEUNEMAN J.—Feldano v. The Magistrate, Anuradhapura.
that the Court had jurisdiction to act under section 159 (1) only in caseNo. 4,647, and that action could not be taken after sentence had beenimposed in that case.
I have examined the language of section 159 (1), and find that itdiffers in many respects from the language of section 160 and section 75which have been quoted by way of analogy.
Section 159 (1) runs as follows : —
“ Where any court which in any year convicts the driver or the ownerof …. a lorry …. is satisfied that the driver, orowner …. has previously been convicted twice or oftener inthe course of that year of the same offence in respect of the same….lorry, the court may callupon the owner of….
the lorry to show cause against an order, suspending the licence of….the lorry …. beingmade in additionto any
other punishment which may be imposed for that offence.”
It follows from this language that—
the proceedings under section 159 (1) cannot be commenced till
after the conviction of the driver or owner. There is nothingin the section making it necessary to take the proceedings beforesentence has followed the conviction.
The jurisdiction to commence proceeding under the section resides
in the “ court ” which has convicted the driver or owner. Thesection does not require that the Court should act in the sameproceeding in which the conviction was recorded. I do notthink the words “ in addition to any other punishment whichmay be imposed for that offence” in the section alters themeaning.
Although the driver alone has been convicted, the proceedings
under section 159 (1) can be directed against the owner. Thisindicates to my mind that the proceeding may be a differentproceeding to that which resulted in the conviction. In thepresent case the driver was convicted, and the subsequentproceedings were taken against the owner.
Section 159 (2) contemplates the case where the original conviction
and the subsequent proceedings for suspending the licence aretaken against the same person and gives the right of appeal inboth cases to» that person. I do not think this necessarilyindicates that the subsequent proceedings must be in the? samecase as that in which the conviction was recorded, but it maybe convenient in such circumstances to have both proceedingsin the same case. This however is not the case I am examiningnow.
I think section 159 (3) shows that the appeal may be from the order
of suspension only. In fact it is not possible for the owner toappeal against a conviction recorded against the driver.
I hold that the Court in the circumstances of the present case hadjurisdiction to entertain the proceedings. The application fails and isdismissed and the rule dissolved with costs.
11J. X. B 17628 (5/52)
FELDANO v. THE MAGISTRATE , ANURADHAPURA et al