AKBA-R SPJ.—Gooneratne v. Mahadeva.
1936Present: Akbar S.P.J.
GOONERATNE v. MAHADEVA.83—P. C. Colombo, 38,414.
Criminal Procedure—Power of Police Magistrate to try accused summarily asDistrict Judge—Appointment of Magistrate—Notification by Attorney-General—Presumption regarding official acts—Evidence Ordinance, s. 114—Criminal Procedure Code, s. 152 (3).
A Police Magistrate, who is also District Judge, has power to trysummarily tinder section 152 (3) of the Criminal Procedure Code anaccused person against whom he has taken non-summary proceedings inrespect of the same offence.✓
Where a notification appeared in the Government Gazette signed by theAttorney-General to the effect that H. E. the Governor had appointed acertain person to act as Police Magistrate during a stated period,—
Held, that a Court would presume that the appointment was regularlymade.
PPEAL from a conviction by the Police Magistrate of Colombo.
H. V. Perera (with him N. E. Weerasooria, N. Nadarajah, and deJong), for accused, appellant.
J.E. M. Obeyesekere, Deputy S.-G. (with him H. W. R. WeerasooriyaC.C.), for Crown, respondent.
July, 1936. Akbar S.P.J.—
Mr. H. V. Perera who appears for the accused-appellant has taken twoobjections to the conviction and sentence passed on the accused in thiscase, both on the law.
The first objection was a serious one as it went to the question ofjurisdiction of the Magistrate to try the case at all. It appears thatnon-summary proceedings were taken against the accused who is aproctor, the charge being one of criminal breach of trust of a sum ofRs. 750 entrusted to him by a corporation in his capacity as agent ofthat corporation. After some evidence had been led, the learnedAdditional Police Magistrate on January 22, 1936 (because he was • aDistrict Judge having jurisdiction to try the offence), although theoffence was not otherwise summarily triable by a Police Court, took
306AKBAR S.P.J.—Gooneratne v. Mahadeva.
summary proceedings, stating as his reason that it was expedient to do so,and purporting to act under section 152 (3) of the Criminal ProcedureCode. The learned Magistrate framed a charge against the accused towhich he pleaded “ guilty His counsel, Mr. R. L. Pereira K.C., movedfor leniency in view of the fact that the accused would anyhow forfeithis professional career and that the money was paid back at the end.The learned Judge refused to treat the accused as a first offender undersection 325 of the Criminal Procedure Code and sentenced him to a termof six months’ rigorous imprisonment.
Mr. Perera argues in the first place that the Magistrate had no juris-diction on January 22, 1936, to act as Police Magistrate, Colombo, withpowers also to act as District Judge. He took the objection on theground that Mr. J. N. Arumugam had been appointed Police Magistrate,Colombo, to officiate from January 18, 1936, and that Mr. Mandersas Additional Police Magistrate had no power to act as Magistrate.Reference was made to the Courts Ordinance, sections 55, 56, and 57. Idid not at that time think that there was much substance in thisargument because whether he was Magistrate or Additional Magistrate,he had concurrent jurisdiction with Mr. Arumugam.
Mr. Perera then took another objection, namely, that Mr. Mandershad not been appointed by the Governor as required by section 56 of theCourts Ordinance, to act as Magistrate on January 22, 1936. If Mr.Manders had not been appointed Magistrate on January 22, 1936, asthe learned Deputy Solicitor-General admitted that he (Mr. Manders)had ceased to act as Magistrate on January 18, 1936, then obviouslyMr. Manders had no jurisdiction to try this case. But a Gazette Noti-fication has been produced by the learned Deputy Solicitor-General,published in the Government Gazette of January 31, 1936, which containsa notification dated January 27, 1936, and signed by the Acting Attorney-General announcing the fact that His Excellency the Governor has beenpleased to make certain appointments. There are 13 appointments soannounced, one of them being to this effect:
“ Mr. R. H. D. Manders to be an Additional Police Magistrate, an
Additional District Judge, and an Additional Municipal Magistrate,
Colombo, from January 18 to 22, 1936.”
Mr. Perera, however, argues that this notification which purports tohave been issued by the Acting Attorney-General on January 27, 1936,appointing Mr. R. H. D. Manders was made after he had begun toofficiate from the 18th and had ended officiating on January 22, 1936.In other words, he is entitled, he says, to ask that a Court should presumethat the ^appointment was made in retrospect. It will be seen, however,from the Evidence Ordinance, No. 14 of 1895, section 114—illustration
—that the Court may presume that judicial and official acts have beenregularly performed. Further, under section 81, the Court shall presumethe genuiness of the local Government Gazette. Section 57 states thatthe Court shall take judicial notice of the accession to office, names,titles, functions and signatures of the persons filling for the time beingany public office in any part of the Colony, if the fact of such appointmentto such office is notified in the Government Gazette.
AKBAR S.P.J.—Gooneratne v. Mahadeva.
I must therefore presume the genuineness of the Government Gazetteand the fact that the proclamation was made by the Acting Attorney-General on January 27, 1936, announcing to the world that Mr. R. H. D.Manders had been regularly appointed, according to law, with power toact between the dates specified in the Notification.
What Mr. Perera wants me to do is to presume the opposite from thefact that the Gazette is dated January 31, 1936, and the Acting Attorney-General’s letter is dated January 27, 1936. I do not see why, in viewof illustration (e) of section 114 of the Evidence Ordinance, I may notpresume that the appointment was made in time so as to authorizeMr. Manders to act as Police Magistrate during the period mentioned inthe Notification.
Another point was taken incidentally and that was the fact that theCourts Ordinance refers to appointments being made by the Governorwhereas this Notification is signed by the Acting Attorney-General.I cannot, in view of the presumtion created by section 114 (illustration(e) ) see any reason to doubt what the Notification purports to state,namely, that the appointment was made by the Governor. Even if itwere otherwise, that is to say, even if the appointment was made by theAttorney-General and not by the Governor, the Interpretation Ordinance—section 9 (3) of Ordinance No. 21 of 1901—in my opinion, covers the case.That sub-section states that in all Ordinances for the purpose of expressingthat a law relating to the chief or superior of an office shall apply to thedeputies or subordinates lawfully executing the duties of such office inplace of such chief or superior, it shall be deemed to have been and to besufficient to prescribe the duty of such chief superior. The Notificationstates that the Acting Attorney-General was acting under His Excellency’scommand. The presumption, therefore, is that the Acting Attorney-General had been duly authorized by His Excellency to perform theduty that he purported to exercise in appointing Mr. R. H. D. Mandersto act as the Additional Police Magistrate of Colombo. In other words,there is nothing before me to show that the Acting Attorney-Generalwas not lawfully executing the duties authorized by His Excellency.
I might mention, however, that the learned Deputy Solicitor-Generalcalled my attention to articles 92, 93, and 94 of the Ceylon State CouncilOrder in Council. Under section 94, the Governor may, by order pub-lished in the Government Gazette, delegate to any Officer of State or toany Executive Committee or to the Head of any Government Depart-ment, subject to such conditions or limitations, as he may prescribe,the exercise of any power, authority or function to which articles 92and 93 refer.
This is one method by which the Governor can act. The alternativemethod is the one adopted in this case, by which he can authorize theAttorney-General to appoint a Police Magistrate or District Judge onhis behalf.
The Gazette of January 31, 1936, enables me' to come to the conclusionthat the appointment has been made in the regular course by an officerwho has been authorized to act by His Excellency the Governor in theway the law allows him. For these reasons, the main objection taken
AKBAR J.—Sadirisa v. Attadasi Thera.
by Mr. Perera fails, namely, that the Magistrate had no jurisdiction to trythis case on January 22, 1936.
Then Mr. Perera took another objection that the learned Magistrate’smind had been prejudiced because he started these proceedings as a non-summary case and that his mind must have been therefore prejudicedin the awarding of punishment on the accused. The accused pleaded“ guilty ” to the charge ; it was a most serious charge under section 392of the Penal Code, which, in the ordinary course, might have been com-mitted to the Supreme Court and the maximum penalty provided bysection 392 is rigorous imprisonment for a period of ten years. I cannotsefe how it can be urged that the Magistrate who only passed a sentence-of six months’ rigorous imprisonment instead of the two years he couldhave passed must have been prejudiced by the facts of the case, whichbecame apparent to him when he recorded the evidence of some of thewitnesses. What happened in this case is obvious enough : many anaccused plead guilty in the hope that they will not get what they consideris a severe term of sentence, and when it turns out opposite to theirexpectations, then points of law similar to the ones raised here are takenin the Court of Appeal. Even if these points succeed the case will haveto be sent back and the accused then stands the risk of standing his trialin a higher Court and of being sentenced to undergo a much more severesentence.
Both objections fail, and the appeal and the application in revision aredismissed.
GOONERATNE v. MAHADEVA