098-NLR-NLR-V-39-GUNETILEKE-(S-I.,-POLICE)-v.-NEPO-SINGHO–et-al.pdf
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FERNANDO A.J.—Gunetileke (S.-T., Police) v. Nepo Singtio
1937[In Revision.]
Present: Fernando A.J.
GUNETILEKE (S.-I., POLICE) v. NEPO SINGHO et al.
P. C: Avissawella, 14,763.
.Prevention of Crimes Ordinance—Charge under sections 373 and 490 of the PenalCode—Magistrate assumes jurisdiction as District Judge—Registeredcriminal—Ordinance No. 2 of 1926, s. 6. •
Section 6 of the Prevention of Crimes Ordinance, 1926, applies where aperson is accused of an offence triable summarily.
It does not apply to a case where the Police Magistrate, who is also aDistrict Judge, tries a case summarily under section 152 (3) of theCriminal Procedure Code.
T
HIS was "an application by the Solicitor-General for revision of anorder of the Police Magistrate of Avissawella.
M. F. S. Pulle, C.C., for the Solicitor-General.
Cur. adv. vult.
July 14, 1937. Fernando A.J.—
The two accused in this case were charged with attempting to commitextortion* an offence punishable under sections 373 and 490 of the Penal■Code. After the accused had surrendered to Court, the Police Magistrate,who was also a District Judge, decided to try the case under the provisionsof section 152 (3) of the Criminal Procedure Code. At that trial, theywere convicted, and sentenced each of them to/Undergo two years’ rigorousimprisonment, and two years’ Police supervision. It is contended forthe Solicitor-General, that each of the accused was a registered criminalwithin the terms of Ordinance No. 2 of 1926, and that the Magistrateshould have discontinued the summary proceedings and commencednon-summary proceedings against the accused as soon as it was broughtto his notice that the two accused were registered criminals.
Crown Counsel referred to various decisions of this Court, and hisposition was that these decisions were inconsistent with one another. InP. C. Kegalla, 12,703, decided on September 13, 1929, Akbar J. refused
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FERNANDO A. J.—Gunetileke (S.-I., Police) j>. Nepo Singho
to interfere in a similar case by way of revision. “ I do not think ”, hesaid, “ section 6 of Ordinance 2 of 1926 applies to a case of this descriptionwhere the Police Magistrate who is also a District Judge, tried the accusedsummarily under section 152 (3) of the Criminal Procedure Code ”. Hedoes not set out his reasons at any greater length, but I understand thatorder to mean that section 6 is not applicable to a case where a PoliceMagistrate tries a case summarily under section 152 (3) because he is alsoa District Judge. In other words, section 6 of Ordinance No. 2 of 1926only applies in a case where a person is accused of a crime triable sum-marily, and not to a case where the offence with which the accused ischarged is not summarily triable. Crown Counsel also referred to thecase of Nadarajah v. Gopalarf, wl^ere Dalton J. expresses his opinionthat a Police Magistrate who tries a case summarily under the provisionsof section 152 (3) has rid himself of his character as Police Magistrate, andis nothing more and nothing less than a District Judge. He refers tothe case of Nadar Lebbe v. Kiri Bandar, where de Sampayo J. expressesthe opinion that a Police Magistrate, if he proceeds under section 152 (3),acts in all cases as Police Magistrate, but as Dalton J. states the- onlyquestion for decision by the Full Court was whether a Police Magistratetrying a case under section 152 (3) can, in respect of an offence triable byhim summarily as Police Magistrate, exercise his larger punitive powersas District Judge. In P. C. Balapitiya, 42,272, which is printed at thefoot of page 379 of the 18th volume of the New Law Reports,de Sampayo J. expresses the same view, and in P. C. Colombo, 43,809,Koch J. on June 19, 1936, appears to. have adopted the same view asDalton J. He did not actually decide that the procedure adopted by thePolice Magistrate was wrong, but quashed the proceedings and .orderednon-summary proceedings to be taken against the accused, reserving tothe accused the right to raise the plea of autrefois convict as was done byDalton J. in Nadarajah v. Gopalan {supra).
Dalton J. also refers to a judgment of Dyall Grant J. in P. C. Dande-gamuwa, 4,802, but that case appears to have turned on the questionwhether the Police Magistrate, when he assumed jurisdiction undersection 152 (3), was still a Police Magistrate or District Judge. Thisquestion, however, is of purely academic interest in the case before me.Before I can deal with this application in revision, I must be satisfied thatthe Police Magistrate who tried this case, whether he acted as PoliceMagistrate or District Judge, was required to follow the provisions ofsection 6 of Ordinance No. 2 of 1926. As I have already pointed out inP. C. Gampaha, 34,542 (Supreme Court Minutes of February 24, 1937),that section can only apply where a person is accused of a crime triablesummarily. The judgment of Akbar J. to which I have already referred,appears to me to have proceeded on that ground, and in the case beforeme, the offences with which the accused were charged were not triablesummarily. In these circumstances, I do not think it necessary to referthis question to a fuller Court. I refuse to deal with these proceedings;in revision.',
Application refused.
« 32 N. L. R. 115.3 IS 2f. X. R. 376