JANSEN v. ARNOLIS

078-NLR-NLR-V-01-JANSEN-v.-ARNOLIS.pdf


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1895.
October IS.
JANSEN v. ARNOLIS.P. C., Colombo, 4,042.
(Itinerating Police Magistrate, Western Province.')
Criminal Procedure Code, $s. 229 and 40$—Ordinance No. 22 of 1890, repealingChapter XIX. of Criminal Procedure Code—Right of appeal whenaccused has pleaded guilty—Mode of recording admission of offenceby accused—Criminal Procedure Code, s. 220—“ Additional PoliceCourt ”—status and powers of Magistrates of one Court sitting apartfrom each other—Ordinance No. 1 of 1889, ss. SS, SO, 57—Exercise ojwise discretion in entertaining complaints.
Since the repeal of section 229 of the Criminal Procedure Code, section403 has become inapplicable to the procedure provided by section 220of the amending Ordinance No. 22 of 1890, and now there is no statutorybar to an appeal by an accused person who has been convicted in a PoliceCourt summarily upon his own admission of guilt.
The terms of section 220, as regards the mode of recording the admis-sion of the accused, must be strictly complied with. It is not enough torecord that “ he pleaded guilty to the charge,” but the exact words usedby him should be set forth.
Ordinance No. 1 of 1889, sections 55,56, and 57, does not admit of any
suoh Court as “ the Additional Police Court of,” ad if each of the
several Magistrates whom the Governor may appoint to a Court consti-tuted a distinct and independent Court.
The proceedings before each such Magistrate should be intituled “ In
the Police Court of(naming the division), holden at (
before, one of the Magistrates of the said Court."
There is no objection to one Magistrate of a Court entertaining acomplaint and issuing process to compel the attendance of an accusedperson before a Police Court, and the inquiry or trial being undertakenby another Magistrate of the same Court; nor is it objectionable for oneMagistrate to admit to bail a person who has been dealt with by anotherMagistrate of the same Court, or to perform a purely ministerial act likethe communicating to an accused the order of the Supreme Court inappeal, and to give effect to such order.
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Bat where one Magistrate has commenced to bear a case, he moatoontinae it to the end, unless it falls within section 89 of the OrdinanceNo. 1 of 1889.
Observations on the exercise of wise discretion in entertaining plaints.
T
HE facts of this case appear fully in the judgment of theChief Justice.
Bawa, appeared for the accused appellant.
Layard, A.-G., was heard as amicus curia.
18th October, 1895. Bonseb, C.J.—
In this case the charge against a man named Amolis was that,being the occupier of a house, he kept the same as a commongaming-place, in breach of section 5 of Ordinance No. 17 of 1889.The record states that he was brought up and the particulars ofthe offence explained to him, and it is then recorded that “ he“ pleaded guilty to the charge,” and on that plea he was convicted.The case comes up before ub in revision, for an appeal whichwas lodged was rejected by the Magistrate, apparently because ofsection 403 of the Criminal Procedure Code, which provides that“ when an accused person has pleaded guilty and been convicted“ by a District or Police Court on such a plea, there shall be no“ appeal.” In the Code, as it was passed originally, there was asection, which was numbered 229, which provided that, after thecharge had been read and explained to the accused, he should beasked whether he was guilty, or had any defence to make ; andif he pleaded guilty the Magistrate was to record the plea, andmight in his discretion convict him thereon. But that questionwas not a question to be asked at the commencement of theproceedings. It was a question which was to be asked after theevidence had been taken for the prosecution, and the Magistratewas of opinion tha^ there was ground for presuming that theaccused had committed an offence which the Court was competentto try. At that stage of the proceedings the Magistrate was toframe a formal charge, and it was after that formal charge hadbeen read and explained to him that the accused was to be askedif he pleaded guilty to the charge, or wished to make anydefence. In 1890 the Code was amended, and section 229 wasrepealed, together with other sections dealing with summarytrials, and the chapter relating to summary trials was re-drafted.But in the new version the procedure to which I have referred ascontained in section 229 found no place. Section 220 of theamending Ordinance provides, as did the Code previously, thatat the commencement of the proceedings in a case summarily
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189$. triable the accused is to be asked if he has any cause to show whyOctober 18. he should not be convicted. If he admits that he has committedBosses, C.J. the offence of which he is accused, his admission must be recordedas nearly as possible in the words used by him, and if he doesnot show sufficient cause why he should not be convicted, theMagistrate is to convict him. Section 403 is therefore inapplicableto the present procedure, now that the plea of guilty has beenabolished, and it might just as well have been expressly repealed,as it has been impliedly, as far as Police Courts are concerned.It would no doubt have been expressly repealed had not thematter escaped the attention of the Legislature. The result isthat now there is no statutory bar to an appeal by an accusedperson who has been convicted in a Police Court summarily onhis own admission of guilt.
In this case it is to be observed that the Police Magistrate hasnot followed the direction given in section 220 of the Code. Hehas not recorded, as nearly as possible, the words used by theaccused. As we have pointed out in several cases recently, thatprocedure is one that must be strictly complied with. TheMagistrate has placed his own interpretation on what the accusedsaid. The accused has a right to ask this Court to decide whetherthe interpretation placed by the Magistrate on his statement is acorrect interpretation, and it is our duty to decide whether theMagistrate has correctly interpreted what the accused said. Wecannot perform that duty unless we have the words as nearly aspossible used by the accused. We must therefore quash thisconviction. It is especially necessary, in a case like this, that theexact words used by the accused should be recorded. Theoffence of keeping a common gaming-house is a statutory offence,which is created by an Ordinance, the details of which are by nomeans easy to be understood, and we ought to be satisfied thatthe nature of this offence was clearly explained to the accused,and that he understood what the offence was of which he wascharged. It is not sufficient to constitute the offence of keepinga common gaming-house, that the man should be the occupier orowner of the house, and that unlawful gaming should have goneon in that house; there are other elements required to completethe offence. So much for the merits of the case.
There are other circumstances in the case which call for ournotice. The proceedings are intituled as having taken place in“ the Additional Police Court of Colombo.” Now, so far as wecan ascertain—and we have had the advantage of the Attorney-General’s assistance in the matter—there is no such Court as“ the Additional Police Court of Colombo.” Ordinance No. 1 of
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1889, section 55, provides that “ the Governor may establish in“ every division of the Island one conrt to be called the Police“ Conrt, and each conrt shall be holden by and before one person',“ to be called the Police Magistrate, at such convenient place or“places within such division as the Governor may from time to“ time appoint.” Then section 56 provides for the case where thework in a division may be too mnch for one Police Magistrate,and it empowers the Governor to appoint more than one PoliceMagistrate to the same Police Court, and section 57 gives thempower to sit apart, but whether one or a dozen Magistrates areappointed they are Magistrates of one and the same Police Court.That being so, the proceedings should be intituled “ In the Police
(Court of (naming the division), holden at ,
before , one of the Magistrates of the said Court.”
There is nothing in the Ordinance to countenance the idea whichappears to prevail that each Magistrate forms a distinct andindependent Court. The position of Magistrates sitting apart inthe same division is analogous to that of Judges of this Courtwhen they, as frequently happens, sit apart.
In the present case that idea has given rise to hardship to thisaccused, of which he has a right to complain. The offence wasalleged to have been committed in Colombo. He was tried inColombo before a gentleman who has been appointed as anAdditional Police Magistrate of Colombo, and was convicted.He appealed against that conviction, and this Court quashed theconviction and ordered the accused to be discharged. Theaccused was undergoing his sentence in the Colombo jail.Instead of that order being carried out by the Magistrate whohappened at the time to be sitting in the Police Court of Colombo,it was thought necessary that the decision of the Court should becommunicated to the accused and his discharge effected by theMagistrate in person who had convicted him. That Magistratehappened to be holding his Court at a place many miles fromColombo, called Henaratgoda. The order of this Court seems tohave been sent to him there, whereupon he ordered the accusedto be brought up before him from Colombo, and he dischargedhim at Henaratgoda.
I understand that, in acting as he did, the Magistrateacted in accordance with what he believed to be the lawlaid down by this Court, and we were referred to a decisionby Mr. Justice Clarence, then acting as Chief Justice, sittingalone, in an appeal from a Magistrate’s Court, from which itwould appear that he was of opinion that the Additional PoliceMagistrate had an entirely distinct jurisdiction from the
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Bonseb, CJ.
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1888.permanent Police Magistrate of the division, according to the
Pettier 18. report In 1 C. L. R., p. 14. In that case the Magistrate, afterCJ. commencing the proceedings, transferred them to the AdditionalPolice Magistrate. The learned Jndge is reported to have saidthat, as far as he understood the position of the two Magistrates,it would seem that this was not a case in which the AdditionalPolice Magistrate had joint jurisdiction, but rather a case oftransfer from one Magistrate to another, and he appears to havetreated it as a case of transfer, which only the Supreme Courtcould order to be made. No doubt, if one Magistrate of a Courthas commenced to hear a case he must continue it to the end,unless it foils within the provisions of section 89 of OrdinanceNo. 1 of 1889. This decision, however, has not been followed by^all the Judges of this Court, for recently in a case before mybrother Withers, he held that where an information had been laidbefore one Magistrate, it was no objection to the conviction thatthe trial had been held before another Magistrate, and it seems tome that that was a sound view of the law. I can see no objectionto one Magistrate of a Court entertaining a complaint and issuingprocess to compel the attendance of an accused person before aPolice Court for the purpose of inquiry whether he has committedan offence which ought to be tried by a Superior Court, or forthe purpose of his being summarily tried, as the case may be, andthe inquiry or trial being undertaken by another Magistrate ofthe same Court; nor can I see any objection to one Magistrateadmitting to bail a person who has been dealt with by anotherMagistrate of the same Court, or performing such a purely minis-terial act as communicating to an accused person the order ofthe Court of Appeal, and giving effect to that order by discharginghim. That is no interference with the principle that must bemaintained, that where one Judge or Magistrate has undertaken,judicial duties with regard to any case, the exercise of thosejudicial duties must not be interfered with by any other Judge orMagistrate of the same Court. I am glad to believe that ourdecision will facilitate the work of Magistrates by removingwhat has been felt to be an impediment in the ready dischargeof their duties.
There was another matter of which the accused complained inthis case. When he was discharged at Henaratgoda it happenedby some mysterious chance that a police officer was ready thereto re-charge him with the same offence from which he had justbeen discharged. The Magistrate entertained the complaint onthe spot, and fixed a day, four days later on, for the hearing ofthe case in Colombo, and in the meantime ordered the accused to
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2nd bail. Of coarse the accused could not be expecu-d to findbail so far away from home, and the result was that ho was :*ni
back to jail. Although the Police Magistrate had jurisdiction to V
entertain the complaint, and therefore there was nothing illegal >nhis doing so, yet I think that he did not exercise his discretionwisely in entertaining the complaint at Henaratgoda. It was noteach a complaint as required the immediate exercise of a Magis-trate's powers. The complainant might very well have beenreferred to the Police Conrt held at Colombo. In all these casesthe Magistrate mast exercise his discretion. A murder case, forinstance, would require immediate action, and a Magistrate wouldrightly use his discretion in entertaining the complaint andissuing process thereon, wherever he might happen to be. We donot wish to fetter in any way the discretion of Police Magistrates,hut we call their attention to the fact that such an exercise oftheir discretion as was made in the present case entailed un-necessary hardship on the accused.
Withers, J.—
I entirely concur. If in my judgment, to which the Attorney-General has referred, I used language calculated to convey theopinion that the appointment of an Additional Magistrate to aPolice Court constitutes a new and separate Court within theappointee’s exclusive jurisdiction, I can only regret that. Hence-forth, however, there can be no mistake.
iS95.
M-.'her 'Si.
ViTUEBS, J.