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FERNANDO v. FERNANDO.D. C. (Criminal), Kalutara, 733/49.
Inquiry by Police Magistrate—Adjournment of case—Summary trial ofstick case by officer who was both Police Magistrate and DistrictJudge—Appearance on behalf of the Attorney-General—Liabilityof accused giving false evidence to be convicted of perjury—Ordi-nance No. 8 of 1896.
A summary trial under Ordinance No. 8 of 1896 does not mean atrial which is not in due form of law, nor a trial held forthwith, norone with evidence inferior in amount or quality. It means atrial without the formality of a preliminary inquiry and commit-ment.
It being provided in the Ordinance No. 8 of 1896 that where aPolice Court and a District Court are presided over by one and thesame officer, it shall not be obligatory on the Police Magistrate toproceed under chapter XVI. of the Criminal Procedure Code witha view to commitment of the accused, but that it shall be lawfulfor him, in his capacity of District Judge, to hear the case withoutany commitment and to determine it, it is not regular for an officerwho is both Police Magistrate and District Judge to interfere with,and assume jurisdiction to try, a case which had been begun andadjourned by an officer who was Police Magistrate only.
When a.District Judge tries a case summarily under OrdinanceNo. 8 of 1896 the prosecution should be conducted by the“ Attorney-General,” or by some officer empowered by him in thatbehalf as required by section 261 of the Criminal Procedure Code.
An accused who gives evidence on his own behalf is liable to beconvicted of perjury if he gives false evidence.
'~J~'HE facts are sufficiently set forth in the judgment.
Domhorst, for appellant.
.In this case it appears to me that the procedure laid down byOrd' nee No. 8 of 1896 has been misunderstood. It is a veiy
25th March, 1897. Bonser, C.J
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useful Ordinance if properly worked. It is intended to providefor oases, which are not infrequent, where the same officer fillsthe offices of Police Magistrate and District Judge. Before thatOrdinance, if a case was brought before the Police Court whiohwas not within the jurisdiction of the Police Magistrate to try,but was within the jurisdiction of the District Court, the PoliceMagistrate had to hold an inquiry under chapter XVI. of theCriminal Procedure Code, with a view to the commitment of thecase to the District Court, of which he himself was the Judge.
It was thought by the Legislature that this was an unnecessarilycumbrous procedure—that in such a case it would be proper toallow the Police Magistrate to transfer the case without anycommitment for trial to the District Court, and then to try itsummarily under the procedure provided by chapter XIX. forcases summarily triable by a Police Court, and accordingly Ordi-nance No. 8 of 1896 was passed. But it will be noted that theOrdinance provides expressly that he is to try the case "in his“ capacity as District Judge.” The preamble to and the title ofthe Ordinance shows that the sole object of the Ordinance was toget rid of the necessity for a preliminary inquiry and commit-ment and to enable cases to be tried summarily. A summarytrial does not mean a trial which is not in due form of law. Itdoes not mean a trial held forthwith, or a trial with evidenceinferior in amount or quality, but it means a trial without theformality of a preliminary inquiry and commitment. In thepresent case a woman called Maria Fernando filed a complaint inthe Police Court of Kalutara before Mr. Constantine, who is aMagistrate of that Court, complaining that the appellant, with twoother persons named, voluntarily caused hurt to her by stabbingand wounding .her with a knife, and that they at the same timeand place committed robbery by stealing and taking away a pairof silver bangles of the value of Rs. 8 and a coral necklace worthRe. 1. She prayed for warrant against the second and third accused.It was not necessary to pray for a warrant against the appellant,because he was brought up by the police. She also on the sameday made the same complaint of hurt and robbery at the police(Station. Mr. Constantine did not hold the dual office of DistrictJudge and Police Magistrate, so the Ordinance to which I .havereferred did not apply to hinrt He very properly followed theprocedure laid down by section 156 of the Criminal ProcedureCode,’and examined the complainant on affirmation. She boreout to the full the allegations made in the complaint. The Magis-trate ordered summons to issue to bring up the third accused.He did not apparently think fit to proceed against the second
March 26.Bokskb, C.J.
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IWJ. aocused, because she was a woman—the wife of the appellant—andMwrth 25, not appear to have taken an active part in the robbery andBonbkb, c.J. hurt. It will be seen that the case was one which Mr. Constantinehad no power to deal with under Ordinance No. 8 of 1896. Allhe could do was to instruct an inquiry with a view to commit-tment to a higher court. Mr. Constantine adjourned the inquiryto the 26th of January.
On the 26th January another Police Magistrate appears tohave been sitting, who was also District Judge of Kaluta^a.He took the case out of Mr. Constantine’s hands and proceededto deal with it under Ordinance No. 8 of 1896. Now, there wasno necessity for his doing that. That was not a course whichwas provided for by the Ordinance, because the case was alreadyin the hands of a Police Magistrate who was not District Judge,and there would be no embarrassment or difficulty about hiscommitting the case to the District Court of which he was notthe Judge. It seems to me that it was irregular for the DistrictJudge to act as he did in this case. However, he proceeded to tryit summarily as District Judgebut in my opinion the trial wasnot conducted as the law requires. It must be remembered thatthis was a trial before the District Court. True it was a summarytrial without a commitment; at the same time it was a trialbefore the District Court. Now, section 261 of the Criminal Pro-cedure Code provides that in every trial before the District Courtthe prosecution shall be conducted by the Attorney-General or bysome officer empowered by him in that behalf. The reason forthat provision is obvious. Offences tried before a District Court areserious offences ; they are offences in which the public are in-terested ; they are not mere petty thefts or assaults arising out ofquarrels between individuals with which the public have nothingto do, and the prosecution of which may very well be left to theaggrieved parties. The prosecution in all serious cases ought tobe conducted by a responsible officer. Of course the Attorney-General cannot conduct prosecutions , in person, but the policy ofthe law is that some officer responsible to him is to have chargeof these prosecutions. It is his duty to see that all materialwitnesses are called, that all the important t facts of the case areproperly brought out, as well in the interest of the prosecutionas of the defence; in short, to see that a fair trial takes place.Now, in the present case, it appears that a gentleman- who isdescribed as the Korale Mudaliyar was allowed to interfere in thisprosecution. Objection to this’ Was taken then and there by thedefendant’s pleader, but the District Judge over-ruled the objec-tion. He says that the Mudaliyar did not conduct the prosecution,
( 343 )
that he merely called the 'witnesses for the prosecution and cross-examined the accused’s witnesses. He was a complete stranger.The District Judge suggests that even if he did oonduot theprosecution it was legal, because section 256 of the CriminalProcedure Code provides that a Magistrate of a Police Courttrying any case may permit any person to conduct the prosecution.The answer to that is, that he was not a Police Magistrate trying acase summarily. He was a Distriot Judge trying a case summarily,and therefore that section had no application.
For these reasons, I am of opinion that this trial was not con-ducted in accordance with law.
Then, to go to the merits of the case. [Upon the merits hisLordship held that though the accused did not deliberately stabthe complainant, he had committed perjury while giving evidenceon his own behalf. His Lordship then proceeded as follows :—]
Under these oiroumstances, while quashing the proceedings forirregularity, I do not think it necessary to order a new trial. Ifthe Attorney-General thinks it a case which he ought to proseoutefurther, he will be at liberty to do so. At the same time I dothink it necessary that the deliberate untruth of the appellant.in denying that he was present should not be allowed to pass with-out , notice. Persons who give evidence on their own behalf areunder temptation to say what is untrue. But if it becomes therecognized practice for persons in that position to tell untruthswith impunity, the result will be that no one will attach any im-portance to what an accused person giving evidence for himselfmay say, mid that will be a consequence most injurious to innocentaccused—an innocent man telling the truth runs the risk of hisevidence being discredited.
Therefore, I direct the case to be sent to the Attorney-Generalwith the view of proceedings being taken against the appellantfor perjury.