135-NLR-NLR-V-02-JAYASINGHE-v.-GRACIANU.pdf
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1807.
March 23,
JAYASINGHE v. GRACIANU.P. C., Colombo, 4,907.
Cattle stealing—-Whipping—Jurisdiction of Police Court—Crimiru. IProcedure Code, 8.16—Previous conviction—Cross-examination ofaccused.
A Police Court has no jurisdiction to iniiicv whipping in a case oftheft of cattle where the offender is above sixteen years of age.
Although it is permissible under the Evidence Act to .ask anaccused, who is giving evidence on his own behalf, whether he hasbeen previously convicted, yet such a question should not beallowed by the Judge unless the accused has set up his previousgood character as a defence.
f 11HE faots sufficiently appear in the judgment.
De Saram, for appellant.
Morgan, for respondent.
23rd March, 1897. Bonser, C.J.—
In this case the two appellants were- convicted of stealing a cow,and sentenced, under section 368 of the Penal Code, by one of thePolice Magistrates of Colombo, to rigorous imprisonment for sixmonths and twenty lashes each. Now, it is quite clear that thissentence cannot stand. The Magistrate had no jurisdiction toaward the sentence of whipping. No doubt the offence is punishablewith whipping by the Penal Code, and is triable by a PoliceMagistrate, but section 16 of the Criminal Procedure Code providesthat a Police Court shall only inflict whipping if the offender isunder sixteen years of age. If the offence is considered so seriousas to^need whipping, it should be tried by a District Court, whichhas juris<jictian to inflict a sentence of whipping.
The accused gave evidence on their own behalf, and were cross-examined by the proctor who conducted the prosecution. Theyadmitted, in answer to a question put by the proctor, that they hadbeen previously convicted of cattle stealing. Now, although that' is a question which is admissible by the Evidence Ordinance, yet Ido not think that it was a-question which the Magistrate ought tohave allowed. If the appellants, while giving evidence on theirown behalf, had appealed to their previous good character, thenit would have been quite proper to ask if they had not been previouslyconvicted. If this case had been tried before the Supreme Courtno Judge would have' allowed that question to be put. Thedanger would be that the jury 'might jump to the conclusionthat, having once before been convicted of cattle stealing,they might be guilty on this occasion also. The evidence
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of previous conviction is not relevant to the issue, which was, Werethe appellants guilty on this occasion ? It would he only admissibleas going to their credibility or to rebut evidence of good character.Then the question was raised as to whether the fact of previousconviction did not deprive the Magistrate of his power to deal withthe case summarily.
Mr. de Saram referred to section 5 of Ordinance No. 17 of 1894,whioh deprives a Magistrate of the power of dealing with casessummarily where it appears there have been previous convictions.of certain crimes within certain periods. . Mr. de S.aram arguedthat, it having appeared in the course of this trial that there was aprevious conviction, the Magistrate ought to have made inquirieswith the view to see whether he had jurisdiction or not. Section5 presents many difficulties, and I do not intend to construe it onthe present occasion. But I will, as Mr- de Saram, on behalf of hisclient, has asked me to do, send the case to the District Court,whioh clearly has jurisdiction, whereas it may be doubtful whetherunder the circumstances the Police Court has jurisdiction. I doso the more readily, since I think it is not improbable that theMagistrate has to some extent been influenced by the fact ofprevious conviction. I direct the case to be tried with the aid ofassessors, who will not know of the previous conviction.
The Judge will take care to keep from them all knowledge ofthe antecedents of the accused, who will thus have an unbiassedtrial.
1897.March 23.
Bonbsb.C.J.