029-NLR-NLR-V-50-HENDRICK-HAMY-et-al.-Appellants-and-INSPECTOR-OF-POLICE-KANDANA-Respondent.pdf
116
Hendrick Homy v. Inspector of Police, Kandana
1948Present: Basnayake J.
HENDRICK TTAMY et al., Appellants, and INSPECTOR OFPOLICE, KANDANA, Respondent
3. C. 1,172-1,173—M. C. Gampaha, 44,759
Criminal Procedure Code—Magistrate assuming jurisdiction as District Judge—Succeeded by another Magistrate—Latter continues ■proceedings withoutgiving his own mind to the propriety of a summary trial—Fatalirregularity—Sections 152 (3) and 425.
Where a Magistrate who has commenced summary proceedings as aDistrict Judge under section 152 (3) of the Criminal Procedure Code issucceeded by another, the latter must form his own opinion as to whetherthe case is one which he may properly try summarily as District Judge-Unless he does so, he acts without jurisdiction and the provisions ofsection 425 are of no avail.
B ASNaYAKE S.—Hendrick Hamy v. Inspector of Police, Kandana 117
Appeal from a judgment of the Magistrate, Gampaha.
M. M. Kumarakulasingham, for accused-appellant.
J.O. T. WeerarcUne, Crown Counsel, for the Attorney – General.
Cur. adv. will.
December 21, 1948. Basnayake J.—
The aecused-appellents (hereinafter referred to as the appellants)were convicted of offences punishable under sections 443, 369, and 314 ofthe Penal Code and each of them was sentenced to a term of one year’srigorous imprisonment on each count, the sentences to run concurrently.
The proceedings which ended with the conviction of the appellants on3rd September, 1948, commenced on 3rd May, 1948. A report (hereinafterreferred to as the report) under section 148 (1) (6) of the Criminal ProcedureCode (hereinafter referred to as the Code) bearing that date is in thereeord. It appears from the first journal entry, which bears the same dateas the report, that the appellants were present on that day on remand.The following remarks in the handwriting of two different persons appearon therecord under the same date : “Police files plaint under sections 443,369, and 314. Cite pros, w.s.s. (1) and (2) for 17.5.48. Bail accusedin 200/200 each”. The trial commenced on 17thMay, 1948, On that dayafter the examination of one B. W. Pablis Naide, a person whose namedoes not appear on the list of witnesses in the report, the learnedMagistrate assumed jurisdiction as District Judge under section 152 (3) ofthe Code. The reasons given by the learned Magistrate for his opinionthat the case may properly be tried summarily are as follows :—
“ 1. Facts appear to be simple.
Can be disposed of expeditiously
After the charges had been read to the appellants under section 187 (3)of the Code and their statements had been recorded under section 188, thetrial was postponed to 12th July, 1948. By that date the Magistrate whooriginally assumed jurisdiction under section 152 (3) of the Code havingbeen transferred, his successor after recording the evidence of the DistrictMedical Officer again postponed the trial for 27th August, 1948.On that day two witnesses, including the one who had been examinedearlier, gave evidence for the prosecution, and the appellants gave evidencefor the defence. Thereafter the learned Magistrate recorded a verdict ofguilty and remanded the appellants, having under section 3 (1) of thePrevention of Crimes Ordinance caused their finger prints to be takenand forwarded to the Registrar of the Finger Prints Identification Office.On 3rd September, 1948, he gave his reasons and passed sentence on theappellants.
The proceedings in the instant case are not in my view in accordancewith the provisions of the Code. On 3rd May, 1948, when the appellantsappear to have been brought before the Magistrate in custody without
118 BAStfAYATCfi j.—Hendrick Hamy v. Inspector of Police, Pa.nda.na
process, accused of having committed an offence -which he had jurisdictionto inquire into, he should have in accordance with section 152 (1) followedthe procedure laid down in Chapter XVI of the Code, or if he was proceed-ing under section 152 (3) followed the procedure laid down in ChapterXVTII and held the examination directed by section 151 (2) of the Code.Without taking either course the learned Magistrate postponed theproceedings for another date. On that day he assumed jurisdiction undersection 152 (3). He did so on grounds which I have already mentionedabove.
The case has certainly not been disposed of expeditiously, for it wasconcluded exactly four months after it commenced. It is not clear howthe learned Magistrate after hearing one witness, who was not evencross-examined on that day, formed the conclusion that the facts weresimple. Learned counsel for the appellants has submitted that theVillage Headman to whom the first complaint of the offence had beenmade, and one Gabo Naide who came up on hearing the cries of the witness
W. Pablis Naide, have not been called. Of the six persons whose namesare mentioned as witnesses in the report, only one besides the ID. M. O.has given evidence. The others have not been examined, and learnedcounsel invites me to presume that their evidence, if produced, wouldhave been unfavourable to the prosecution. Having regard to the factthat a report under section 148 (1) (6) is made after an investigation underChapter XII of the Code, it may fairly be assumed that those whose namesappear in the list on the report are persons whom the officer making thereport regards as material witnesses. When such witnesses are notcalled without any excuse or explanation, the court is entitled to presumethat they are unfavourable. In the learnedMagistrate’s order of 3rd May,1948, he singled out two of the witnesses whose names were on the reportand ordered summons on them. The record does not indicate why hedid so. Of the two on whom summons was ordered only one, EngaNachchari, gave evidence. The other, P. Pablis Naide, was not called ;but instead of him one B. W. Pablis Naide gave evidence. These arecertainly features of the case which are unsatisfactory, and learnedcounsel for the appellants has rightly complained of them.
There is also a very important departure from the provisions of theCode which I think affects this conviction. Mr. Alles, the Magistrate whoformed the opinion that the offence is one that may properly be triedsummarily, did not try the offence. After he had taken the steps pre-scribed by section 187 (3) and 188 of the Code, and before the trial, heappears to have been transferred. His successor, Mr. Senaratne,proceeded to try the appellants without himself giving his mind to thepropriety of trying them under section 152 (3) and without indicatingto the accused the fact that he was trying them in his capacity as DistrictJudge. In fact there is no statement on record that Mr. Senaratne wasalso a District Judge at that date. There is nothing in the CourtsOrdinance to indicate that every Magistrate is also a District Judge,nor is there any presumption to that effect. The record should containa statement that the Magistrate is acting under section 152 (3) 1 and that
x 1 C. W. R. 6.
BASNAYAKE J.—Hendrick Hamy v. Inspector of Police, Kctndana 119
he is also a District Judge having jurisdiction to try the offence1. Inview of the fact that a Magistrate acting under section 162 (3) hasjurisdiction to impose any sentence which a District Court may impose,it is important that the accused should not be left in any doubt as to thecapacity in which the Magistrate is acting. It has been held by thisCourt that the Magistrate’s opinion that the case is one that may properlybe tried summarily is a condition' precedent to his assumption ofjurisdiction under section 152 (3) 2. That being so, a Magistrate whosucceeds another who has commenced proceedings under section 152 (3),must give his own mind to the propriety of trying the case summarilyunder that section and form his own opinion as to whether the case is onewhich he may properly try summarily as District Judge. Unless he doesso, the condition precedent to the exercise of the Magistrate’s jurisdictionas District Judge would be absent, and without it he would have nojurisdiction. The opinion of a Magistrate is not binding on his successor,and it may well be that the successor may not share his predecessor’sopinion. In the context the words “ he may try the same summarily ”to my mind indicate that the trial should be by the Magistrate who formsthe opinion that the case should be tried summarily, and not by anotherwho has not given his mind to the question.
Learned Crown Counsel has drawn my attention to the case ofGunawardena v. The King3 where my brother Wij eyeWardene has heldthat section 292 of the Code is sufficient authority for a Magistrate whois also a District Judge to continue proceedings commenced under section152 (3) by his predecessor without himself giving his mind to the proprietyof trying the offence summarily. I wish to say with the greatest respectthat I find myself unable to subscribe to that view. Section 292 permits aMagistrate who succeeds another to act on the evidence recorded by hispredecessor, but I am unable to find therein any authority for a Magistrateto continue to exercise a special jurisdiction assumed by his predecessor inpursuance of an opinion his predecessor had formed. The successor may,by virtue of that section, peruse the evidence, if any, recorded by hispredecessor with a view to forming his opinion; but he must form hisindependent opinion.
In my view the learned Magistrate has acted without jurisdiction, andsection 425 of the Code is therefore of no avail. That section appliesto judgments passed by a court of competent jurisdiction. The learnedMagistrate having acted without jurisdiction, the judgment in the instantease cannot be said to be a judgment passed by a court of competentjurisdiction.
I observe that the learned Magistrate has imposed a term of one year’srigorous imprisonment in respect of the offence punishable under section314 of the Penal Code. That is an offence summarily triable by aMagistrate, and in imposing a sentence of one year’s rigorous imprison-ment in respect of that offence he has acted in disregard of the decisions ofthis Court which have repeatedly laid down that a Magistrate acting under
1 Punchi Naide v. Raltramhamy, Leembruggen'a Reports 95, Penarie App-u, v.Rabun, 6 C. W. R. 319.
Silva v. Silva [1904) 7 N. L. R. 182.
[1948) 50 N. L. R. 107 ; 38 C. L. W. 63.
120 BASNAYAKE J.—Hendrick Hamny v. Inspector of Police, BLandana
section 152 (3) is not entitled to impose in respect of an offence triablesummarily by a Magistrate a punishment greater than that 'which aMagistrate may award qua Magistrate.
Judging by the appeals that have come up before me, there appearsto be a tendency on the part of Magistrates who are also District Judgesto use section 152 (3) for the purpose of trying summarily offences whichshould properly be tried by a District Court. Magistrates seem to losesight of the fact that the rule to be adopted in the case of offences whichappear to be not triable summarily is prescribed in section 152 (1).Section 152 (3) is an exception to that rule, and as an exception it mustremain. It cannot be gainsaid than an accused who is tried under section152 (3) is deprived of the advantage of a preliminary investigation,a consideration of his case by the Attorney-General prior to indictment,and a subsequent trial at which he has the benefit of knowing beforehandthe recorded depositions of the prosecution witnesses and the documentsthat will be in evidence against him. To my mind it is clear from section152 that the Legislature did not intend that accused persons should bedenied all those advantages save in exceptional cases, and that too forgood reasons. If it is felt that the jurisdiction of Magistrates is toolimited, the remedy seems to be an extension of that jurisdiction by theLegislature and not the usurpation of a higher jurisdiction. Havingregard to the fact that they are all trained lawyers, I personally feel thatthe jurisdiction of Magistrates can safely be enlarged not only in regardto the kind of offences a Magistrate may try, but also in regard to themaximum punishment a Magistrate may impose. Such an extensionwill no doubt be in the public interest; but those are matters for theLegislature.
For the above reasons I set aside the conviction of the appellantsand send the case back for non-summary proceedings.
Proceedings set aside.