092-NLR-NLR-V-49-KIRI-MUDIYANSE-et-al.-Appellants-and-POTUHERA-POLICE-Respondent.pdf
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BASNAYAKE J.—Kiri Mudiyanse v. Poluhera Police
1948Present: Basnayake J.
KIRI MUDIYANSE et al., Appellants, and POTUHERA POLICE
Respondent.
S. C. 57-59—M. C. Kurunegala, 36,944.
Criminal Procedure Code, section 152 {3)—Non-summary offence—House-breakingand theft-—Triable summarily—Power of Magistrate—Penal Code, section 443.
There is no objection to a Magistrate trying the offence of house-breakingand theft summarily in his capacity as District Judge under section 152 (3)of the Criminal Procedure Code.
Smith v. Peleck Singho (1942) 23 C. L. W. 76 referred to.
Appeal from a judgment of the Magistrate, Kurunegala.
S. R. Wijayatilake, for the accused-appellant.
A. C. Alles, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
March 22, 1948. Basnayake J.—
The accused appellants have been convicted of offences punishableunder sections 443 and 369 of the Penal Code. The first and thirdappellants have been sentenced to undergo one year’s rigorousimprisonment for each offence, the sentences to run concurrently.The second appellant who has been previously twice convicted ofoffences specified in the Schedule to the Prevention of Crimes Ordin-ance has been sentenced to undergo two years’ rigorous imprison-ment and to be subject to the supervision of the police for a periodof 2 years on the expiration of his term of imprisonment.
The prosecution case is that somewhere between two and three inthe morning of March 21, 1947, the three appellants entered thehouse of one Ausadahamy and removed a box containing Rs. 60 incash, and clothes and jewellery to the value of Rs. 238. The occu-pants of the house at the time were Roslin Nona the wife of Ausada-hamy, and his daughter Baby Nona. Ausadahamy himself was thatnight at the threshing floor near by and came up on hearing his wife’scries of distress. Both Roslin Nona and Baby Nona identified thethree appellants by the aid of a lamp that was alight. The firstheld Roslin Nona by her neck and asked her not to shout, the second
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took the box and the third held an electric torch on to the face of herdaughter Baby Nona who was awake at the time the appellantsentered the house. Complaint was made to the headman at fourthirty in the morning and all three appellants were mentioned. Thedefence is a complete denial of the charges. It is alleged that theheadman and Ausadahamy have fabricated the story in order to payoff a grudge against the first apellant.
The learned Magistrate who accepted the evidence of the prosecu-tion witnesses has in my view rightly convicted the apellants.
Learned counsel for the appellants submits that the learned Magis-trate who tried the appellants under section 152 (3) of the CriminalProcedure Code in his capacity as District Judge 'should not in thecircumstances of this case have done so. He relies particularly onthe case of Smith v. Peleclc Singho and another 1 wherein it was heldthat a Magistrate should not summarily try a charge under section443 even in his capacity as District Judge.
Section 152 (3) provides that where the offence appears to be onetriable by a District Court and not summarily by a Magistrate’sCourt and the Magistrate being also a District Judge having juris-diction to try the offence is of opinion that such offence may properlybe tried summarily, he may try the same summarily, following theprocedure laid down in Chapter XVIII and in that case he shall havejurisdiction to impose any sentence which a District Court may law-fully impose. I can find no authority in this provision for laying downany hard and fast rule as to the kind of offence a Magistrate may trythereunder. The legislature has left it to the discretion of the Magis-trate subject of course to review by this Court. For my own part Ido not wish to fetter that discretion by specifying the offences aMagistrate should not try under this sub-section. The principle thatshould guide Magistrates in acting under section 152 (3) of the CriminalProcedure Code as stated by Wood Renton J. in the case of Hodgsonv. George 2 commends itself to me if I may say so with respect. Hesays, “ There is no doubt as to the general principle that where acase presents unusual difficulty, in regard either to the facts or to thelaw, it is not desirable that the powers conferred on Police Magis-trates by section 152 (3) of the Criminal Procedure Code should beexercised ”. When applying some of the earlier dicta of this Courtin regard to the class of case a Magistrate should not try undersection 152 (3) of the Criminal Procedure Code it must be borne inmind that a Magistrate’s ordinary jurisdiction qua Magistrate hasbeen considerably widened since 1938. He has been given power totry summarily a number of offences which he had no power to trybefore.
In the present case I am not prepared to hold that the learnedMagistrate has not exercised his discretion properly. The case isnot one that presents unusual difficulty in regard to facts or law. Ifind myself unable to agree with the judgment cited by learnedcounsel.
The appeals are dismissed.
Appeal dismissed.
1 (1942) 23 C.L. W. 76.* (1909) 1 Current Law Bejxirts 171 at 181.