( 95 )
Present: Loos A.J.
JAINADEEN v. GEOMONIS.137—P. G. Matugama, 976.
Non-summary inquiry by Magistrate—Trial by the same Magistrate—Bias.
When a Magistrate held a non-summary inquiry and forwardedtiie case to the Attorney-General for instructions—
Held, that it was not proper for him to try tire case summarily.
f J1HE facts appear from the judgment.
Cmos-Dabrera, for accused, appellant.—A Magistrate holdingnon-summary proceedings is in the position of a prosecutor, andshould not, as a rule, try summarily a charge on the same facts(Fernando v. Anna Bat *).In this case the Magistrate had
completed the inquiry and forwarded the record to the Attorney-General with his opinion. A Police Magistrate, who is also a District
* (1918) 5 C.WJt. m.
( )Mtt-Judge; should exercise his discretion under section 152 (8) of the
rrrfnmfrm r. Criminal Procedure Code immediately after hearing the evidenceOeemenia0f the complainant or other witness as required by section 149.
He cannot do so when all the evidence has been recorded and theprosecution closed (Queen v. TJduman 1). A charge under section 448of the Penal Code cannot be tried summarily by a Police Magistrateunder section 152 (Danhia v. Donhamy *). These irregularities havepaused a substantial miscarriage of justice, and cannot be cured bythe provisions of section 425 of the Criminal Procedure Code.
March1919. Loos A.J.—
In this case the accused was charged with the theft of one hundredand twenty diamond-rubber sheets, and the Magistrate proceededto take non-summary proceedings.
Being then of opinion, apparently, that a case had been made outagainst the accused, he forwarded the case to the Attorney-General,presumably in order that the accused. might be committed for trial.On the receipt, of the record from the Attorney-General the Magis-trate proceeded to try the case summarily.
In the first place, 1 do not think it is proper that the Magistrate,who had apparently made up his mind that thei accused was guilty,and sent the case to the Attorney-General for committal, shouldthereafter have proceeded to try the case afresh, for in non-summaryproceedings he is practically the prosecutor in the case. In thenext place, the Magistrate has apparently lost sight of the casesreported in 2 Br. 230, 5 C. W. R. 184, and 4 N. L. R. 1.
The conviction of the accused appears to me to be bad accordingto law. The proceedings are accordingly quashed, and the caseremitted for trial before another Magistrate.
* (1600) 4 N. L. R. 1.
» (1901) 2 Browne 230.
JAINADEEN v. GEOMONIS