( 4U )
Present: Bertram O.J.
GUNAWAKDENE v. SAMAEAKOON'et al.
46—P. G. Hambantota, 4,070.
False charge of robbery added on to a charge of assault—Refusal ofMagistrate to proceed with the case—Case sent back by SupremeCourt—Observations on the practice of referring cases to police forreport. •
The complainant charged accused with having assaulted himand withhavingcommitted robbery.TheMagistratewasof
opinion that the charge of robbery was false, and refused toproceed with the case,on the ground that he would haveno
confidence under the oircumstances in acting on the evidence ofthe complainant.
Held, that the fact that the complainant embellished his case byintroducinga chargeof robbery was nota sufficient reasonfornot
inquiring into the charge of assault.
When acase ofassault and robberycomesbefore a Magistrate
it is mostdesirablethat he should inquire intothe matteratonce
before either side has had time to fabricate evidence.
It is not desirable that a case of this sort should be' referred to the police -for report.
fJVfcLE facts appear from the judgment.
W. Jayawardene, for the appellant.
February 11, 1920. Bertram' O.J.—
This is a case in which the charges are, firstly, assault; and,secondly, robbery. The Magistrate who tried the case in .hiscapacity as a District Judge took certain steps to satisfy himself asto the nature of the case, mid, having formed the opinion that thecharge of robbery was probably annexed to the charge of assaultwithout foundation, thought it not worth while to proceed with the.case on the ground that he would have no confidence under thecircumstances in acting on the evidence of the complainant. Theassault took place three months ago, and it would certainly be verydifficult, after this long interval, to ascertain the truth. Neverthe-less, one-of the fundamental rights of the individual has beenviolated. Somebody had assaulted him, and there wals at the time
( 412 )
adequate.material..for an investigation of the assault. Peaceablecitizens must be protected from such assaults. We know it oftenhappens that where there is a disturbance the complainants seek toembellish their case by introducing a charge of robbery. In suchcases the Courts very often, where they consider the evidence ofrobbery unsatisfactory, deal with the case simply as an assault case.But I do not think that it would be a safe rule supply because aMagistrate suspects that a case has been so embellished to declineto go into the question of assault. I regret that it should be neces-sary to send back this case, but where a person claims the protectionof the law, he is entitled to receive it even though his conduct mayexcite' suspicion, if it does appear that some substantial harm hasbeen done to him. Here a report was made almost immediately toa police officer. Another police officer on the Magistrate’s ownrequest investigated the case within a day or two, and there werewitnesses whom the complainant had vouched. I think that thecase must go back for investigation, and, under the circumstances,I feel sure that the learned Magistrate, as he has already formed anopinion adverse to the complainant, would prefer that arrangementsshould be made for its trial by another Magistrate.
I should. further like to make this observation with regard tocases of this kind. Where a case of assault and robbery comesbefore a Magistrate, it is most desirable that he should inquire intothe matter at once, before either side has had time to fabricateevidence. As soon as cases of this sort, arising out of personalquarrels, are brought, the imagination of both sides becomes mostactive. What is wanted is that the statements should be takendown at once. I, therefore, feel that it is very desirable in thesecases, even where it may not be possible to go into the matter atonce, that the Magistrate should take down statements from wit-nesses who are available at the time when the complaint is brought.
It is not desirable, I think, that a Magistrate should refer a caseof this sort to the police for report. The police in reporting on thecase to the Magistrate are very properly forbidden to express anopinion. The only object of a police report is to assist the Magis-trate .in the investigation of the case. It is much better, therefore,that the' Magistrate should take the matter in hand himself, andascertain hy inquiry what is the material which is available forthe investigation of the case. To send the case for inquiry to thepolice' may lead, though I do not say it led in this case, to a Magis-trate delegating the function, which the law intends him to exercise,to a police officer. While I do not say that there may be occasionswhere a police report -may justifiably be requested few theassistance of a Magistrate, I think that the practice ought to becarefully, watched.: The case will go back for further investigation.
GUNAWARDENE v. SAMARAKOON et al