v.OFFICER-IN-CHARGE, MEETIYAGODA POLICE STATION
SHARVANANDA, C.J., L. H. DE ALWIS, J. AND H. A. G. DE SILVA, J.
S.C. APPEAL No. 71/85CA 625 -631/78.
M.C. BALAPITIYA 62797.
Misjoinder of charges-Time at which it is necessary to determine whether the offencesalleged were committed in the course of the same transaction-Circumstances in whicha misjoinder of charges is curable under section 436 of the Code of Criminal ProcedureAct No. 15 of 1979.
The six appellants, the 1 st to the 6th accused, were charged by a Magistrate, who wasalso an Additional District Judge, on count (1) with abducting one Amolis Silva from hishouse, and on count (2) six others, the 7th to the 12th accused were charged withcausing mischief by damaging the house and property of Amolis Silva. No objection tothe joinder of charges was raised at that time the accused were charged, nor was anapplication made for separate trials. After trial, the first six accused were convicted oncount (1) and each of them was sentenced to nine months' rigorous imprisonment, andthe 7th accused was convicted on count (2) and fined Rs. 200.
On appeal, the Court of Appeal held that the two offences referred to in counts (1) and
were unconnected incidents and were not committed in the course of the sametransaction, and set aside the conviction and sentence of the 7th accused on count (2).but the conviction and sentence of the 1st to the 6th accused on count (1) wereaffirmed.
The appellants appealed from the judgment of the Court of Appeal. Learned counsel forthe appellants contended that the misjoinder of charges is an illegality which vitiates thewhole charge and is not a curable irregularity.
Held-by L. H. de Alwis, J. (Sharvananda. C.J. and H. A. G. de Silva. J. agreeing)
that the time at which it falls to be determined that the conditions that the offencesalleged had been committed in the course of the same transaction had beenfulfilled, is the time when the accusation is made, and not when the trial isconcluded and the result is known.
that a misjoinder of charges is curable under provisions of the Code of CriminalProcedure if there has been no actual or possible failure of justice.
as the misjoinder, in the present case, has not prejudiced the appellants andoccasioned a failure of justice, it amounts to an irregularity that is curable undersection 436 of the Code of Criminal Procedure Act No. 15 of 1979, and theappeal, therefore, fails.
Cases referred to:
J1) Jonktaas v. Somadasa-(1942) 43 NLP 284.
Subramania lyarv. The King-1.L.P. 25 Mad. 61.
Beatrice Perera v. The Commissioner of National Housing-7 7 NLR 361.
Public Prosecuter v. Kadiri Koya Haji- 16C.L.J. 593.
Abdul Rahuman v. The King Emperor-541.A. 96.
King v. Dharmasena-(1950) 51 NLR 481 (P.C.)
Babulal Choukhani v. The King Emperor-L.R. 651.A. 168.
Wimalasena v. I.P. Hambantota-f 1967) 74 NLR 176.
King v. Kitchilan-(1944) 45 NLR 82.
Madar Lebbe v. Kiri Banda-( 1915) 18 NLR 376. –
APPEAL from judgment of the Court of Appeal.
Dr. Colvin R. de Silva, with Mrs. M. Muttetuwegama for the 1st to the 6thaccused-appellants.
Asoka de Silva, S.S.C. with S. Gamlath, S.C. for Attorney-General.
Cur. adv. vult.
December 12, 1986.
L. H. DE ALWIS, J.
This is an appeal by the six accused-appellants, with the Special Leaveof this court, from the judgment of the Court of Appeal dismissingtheir appeals and affirming the conviction and sentence imposed onthem by the Magistrate's Court, Balapitiya.
The Inspector of Police, Meetiyagoda, filed a written Report in termsof section 148(b) of the Criminal Procedure Code in the Magistrate'sCourt of Balapitiya on 21.8.70, disclosing two offences committed,one, by the first to the sixth accused of abducting Salpadura ThuppaheArnolis Silva, an offence punishable under section 356 read withsection 32 of the Penal Code; the other, by the 7th to the 12thaccused of mischief by damaging the house and property of the saidArnolis Silva to the extent of Rs. 200, an offence punishable undersection 410 read with section 32 of the Penal Code.
On 31.1.71 the Magistrate who was also an Additional DistrictJudge, recorded the evidence of Arnolis Silva and his daughter DayaKumar, with a view to assuming jurisdiction in terms of section 152 (3)of the Criminal Procedure Code, inasmuch as the offence of abductionwas one triable by the District Court. Since there was no evidenceagainst the 8th and 9th accused he discharged them and assumedjurisdiction as A.D.J. in order to try the other accused persons. Theywere then charged from a charge sheet dated 31.1.71 on the twocounts mentioned in the Police plaint and they pleaded 'not guilty'.
Trial was postponed on several occasions on account of theabsence of some of the accused. Before the trial could be taken up,the Administration of Justice Law No. 44 of 1973 came intooperation on 1.1.74 and repealed the Criminal Procedure Code. On23.8.74 the 10th accused was reported by the Meetiyagoda Police tobe dead. Eventually when the rest of the accused were present on10.3.77 the Magistrate charged them afresh from a charge sheet onthe same two counts and fixed the case for trial on 11.8.77. After trialthe 11 th and 12th accused were found not guilty and acquitted. The1 st to 6th accused were convicted on count (1) and sentenced to 9months' rigorous imprisonment each. They were acquitted on count(2). The 7th accused was acquitted on count (1) and convicted oncount (2) and fined Rs. 200.
On appeal to the Court of Appeal the conviction and sentence of the7th accused on count (2) was set aside, but the conviction andsentence of the 1st to 6th accused on count (1) were affirmed. Thepresent appeal is by the 1 st to 6th accused from that judgment of theCourt of Appeal.
The findings of fact reached by the Magistrate against the 1 st to 6thaccused have not been disturbed by the Court of Appeal and are notcanvassed before this court. Learned counsel for the appellantssought to have the conviction and sentence imposed on the appellantsset aside on two legal grounds, one relating to a misjoinder ofcharges, and the other in regard to the legality of the proceedingswhich were taken under the provisions of the Administration of JusticeLaw. Neither of these matters of law appear to have been taken upeither in the Magistrate's court or the Court of Appeal, although theCourt of Appeal set aside the conviction and sentence of the 7thaccused on count (2) on the ground of misjoinder of charges.
Both courts appear to have proceeded on the basis that all twelveaccused were jointly charged on counts 1 and 2. But this, in my viewis erroneous. Learned counsel for the appellants sought to support theview taken by the two courts below, on the basis that the charge sheetdated 10.3.77 contained the words "you are hereby charged, thatyou did…" as referring to all the twelve accused persons mentioned ina list annexed to the charge sheet. But the phrase does not standalone. The charge sheet which is in a printed form reads as follows:
"You are hereby charged, that you did, within the jurisdiction ofthis court, at Dorala, Batapola on 29th November, 1970. In thatyou, the above 1st, 2nd, 3rd, 4th, 5th and 6th accused kidnapSalpadura Thuppahe Arnolis Silva..an offence punishable undersection 356 read with section 32 of the Penal Code, Chap. 19 NLE
..At the same time and place aforesaid and in the course of thesame transaction you, the abovenamed 7th, 8th, 9th, 10th, 11thand 12th accused…caused destruction of the property in thepossession of the said S. T. Arnolis Silva…an offence punishableunder section 410 read with section 32, Penal Code, Chapter 19NLE."
Each count specifically referred to a different set of accusedpersons. In count (1) the 1st, 2nd, 3rd, 4th, 5th and 6th accusedwere charged with the first offence and in count (2) the 7th, 8th, 9th,10th, 11 th and 12th accused were charged with the second offence.The evidence in no way involved the 7th to the 12th accused, in theoffence specified in count (1), nor the 1st to the 6th accused, insecond count. Each of these two sets of accused persons were thuscharged with a different offence in the same charge sheet.
The question now, is whether the charges so framed, are bad in lawfor misjoinder. To consider this question it is necessary to refer to theevidence briefly.
Arnolis Silva stated that at about 8.30 p.m. on 29.5.1970, the 1 stto the 4th accused came to his boutique and called out to him sayingthat his boutique was being damaged. When he came out toinvestigate, these four accused carried him bodily and put him into awaiting car, which drove off and stopped about 50 yards away, nearRomiel's house. The four accused got down and the 5th and 6thaccused and another person got into the car. Arnolis Silva wasblindfolded and taken to a house on an estate, where he was
assaulted and made to lie down on a bed. He was not given food whilehe was there and after four days he was taken by car and droppednear the Kuliyapitiya hospital. The incident occurred immediately afterthe elections and was motivated, according to Arnolis Silva, by electionrivalry. Arnolis Silva’s daughter Daya Kumar stated that about 10minutes after her father was taken away the 7th accused and otherpersons threw stones at their house. They then entered it anddamaged the windows and doors of the house and a bicycle,belonging to Arnolis.
The appellants were charged on 10.3.77, when the Administrationof Justice Law No. 44 of 1973 (A.J.L.) was in operation, and theprovisions of the law relating to joinder of accused and charges arecontained in sub-sections (1) to (7) of section 111.
Section 111(1) states that:
"For every distinct offence of which any person is accused thereshall be a separate charge and every such charge shall be triedseparately, except in the cases mentioned in the next succeedingsub-sections which said sub-sections may be applied eithergenerally or in combination."
The sub-section which is applicable to the present case is (7) and itprovides as follows:
"When more persons than one are accused of jointly committingthe same offence or of different offences committed in the sametransaction or when one person is accused of committing anyoffence and another of abetment of or attempt to commit suchoffence, they may be charged and tried together or separately asthe court thinks fit."
Learned counsel for the appellants invited our attention to thefinding of the Court of Appeal that there was a misjoinder of charges.Bandaranaike, J., stated in his judgment that as far as the 7th accusedwas concerned, his acquittal by the Magistrate on count (1) wasindicative of the fact that he had not joined the 1 st to the 6th accusedin their criminal conduct, which was the subject matter of count (1),nor was there any evidence to that effect. This was a misdirection onhis part because the 7th accused was not charged along with the 1stto the 6th accused on count (1). Bandaranaike, J., then stated thatthe second incident, which was of committing mischief by damaging
the property of Arnolis Silva and the subject of the second count,occurred about 10 minutes after Arnolis was abducted and was aseparate transaction. The Court of Appeal thus came to theconclusion that the evidence was consistent with there being twounconnected incidents and that in the absence of a charge ofconspiracy or unlawful assembly the second incident could not be saidto be a continuation of the earlier transaction, so that the conviction ofthe 7th accused on count (2) could not be sustained because of themisjoinder of charges.
Learned counsel for the appellants contended that the misjoinder ofcharges, is an illegality which vitiates the whole charge and is not acurable irregularity. The question of whether or not prejudice wascaused to the accused is irrelevant since the charge is rendered void.
In Jonklaas v. Somadasa (1) it was held that continuity of purposeand continuity of action are essential elements necessary to linktogether acts so as to form one and the same transaction within themeaning of section 184 of the Criminal Procedure Code (same assection 111 (7) of the A.J.L).
It was further held in that case that disobedience to an expressprovision as to a mode of trial is an illegality which vitiates theconviction.
In that case six accused were charged in the Magistrate's court on-Count (1) with committing mischief at Grandpass Road on6.4.1941 by causing damage to the value of Rs. 50 to car No.Z/2367 and to other vehicles, in the possession of the Hon. D. S.Senanayake and others, an offence punishable under section 410of the Penal Code.
Count (2) with having at the same time and place, as aforesaid,attempted to commit mischief by aiming stones at car No. Z/2367and other motor vehicles belonging to Hon. D. S. Senanayake, anoffence punishable under section 409 of the Penal Code.
The evidence was that about the time that Mr. Senanayake andothers were going away from a meeting the accused committed theacts referred to in the charges. Some distance away from the placewhere the meeting was held, the 1st accused was arrested about 7p.m. as he aimed a stone at a passing car. There was no evidencewhether the stone struck the car or as to whose car it was. Aboutquarter of an hour later, as Mr. Senanayake was driving alongGrandpass Road, the appellants and some others threw stones andsome of them hit Mr. Senanayake's car. Sometime later, as Dr.Saravanamuttu, in respect of whose candidature the meeting washeld, was walking down Grandpass Road, followed by his car, aconstable arrested the 6th accused as he saw him "pelting a stonetowards Dr. Saravanamuttu's car".
The question was whether the six persons accused had committedthese offences in the same transaction. Wijewardena, J., said:
“The evidence in this case in regard to the stone throwing by the1 st accused and 6th accused renders it impossible to regard theiroffences and the offences of the appellants as committed in thesame transaction a.id it cannot be said that we have here acommunity of purpose and a continuity of action which are regardedas essential elements necessary to link together different acts so asto form the same transaction. There is, therefore, in this case a clearmisjoinder of accused."
Wijewardena, J., further said:
"Such a misjoinder cannot be regarded as a mere irregularitywhich can be cured under section 425 of the Criminal ProcedureCode or section 36 of the Courts Ordinance."
His Lordship then referred to the case of Subramania lyar v. TheKing (2) where the Privy Council stated that the disobedience to anexpress provision as to a mode of trial should not be considered as amere irregularity but as an illegality, and said that the Supreme Courthere had adopted and followed that principle in several cases.
Although the word "transaction" has not been defined in theCriminal Procedure Code, nor in the Indian Code of CriminalProcedure, the High Courts of India have held that the substantial testfor determining whether several offences are committed in the sametransaction is to ascertain whether they are so related to one anotherin point of purpose or as cause and effect or as principal andsubsidiary acts as to constitute one continuous action. Thoseingredients were lacking in that case to constitute the sametransaction. The facts of that case are distinguishable from thepresent case. There, the same six accused persons were charged ontwo counts which related to offences committed at different times andplaces, and by different accused.
Learned counsel for the appellants further contended that themisjoinder of charges denudes the court of jurisdiction over thematter, and renders the conviction void. Such want of jurisdiction ispatent and no waiver of objection or acquiescence can cure it.
In the present case no objection was taken to the misjoinder ofcharges in the Magistrate's Court and the appellants stood their trialon the charges so framed. But it was submitted that if the court hadno jurisdiction to try the case at all, the appellants could not tacitlyconfer jurisdiction on it by their consent. Vide Beatrice Perera v. TheCommissioner of National Housing (3).
In Subramania lyar's case (supra) (2) the appellant was tried on anindictment in which he was charged with no less than 41 acts,ofobtaining illegal gratification from clerks, extending over a period oftwo years. This was plainly in contravention of s. 234 of the IndianCode of Criminal Procedure (A.J.L., s. 111 (2)) which provided that aperson may only be tried for three offences of the same kind ifcommitted within a period of 12 months. This was a case of cleardisobedience, of an express provision relating to the mode of trial.Lord Chancellor Halsbury in that case stated:
“The reason of such a provision, which is analogous to our ownprovisions in respect of embezzlement, is obviously in order that thejury may not be prejudiced by the multitude of charges and theinconvenience of hearing together of such a number of instances ofculpability and the consequent embarrassment to Judges andaccused. It is likely to cause confusion and to interfere with thedefinite proof of a distinct offence which it is the object of all criminalprocedure to obtain. The policy of such a provision is manifest andthe necessity of a system of written accusation specifying a definitecriminal offence is of the essence of criminal procedure.”
It was no doubt, the multitude of offences in that case and theglaring and patent disregard of a prohibition in the joinder of chargesthat led the Board to strike down the charges as an illegality.
In Public Prosecutor v. Kadiri Koya Haji (4) the principle laid down bythe Privy Council in Subramania Aiyar's case (supra) (2) was followedby a Full Bench of the Madras High Court. Napier. J., while concurringwith the other two Judges said as follows:
"I do not however, think that the decision of the Privy Council inSubramania Aiyar v. The King (supra), compels us to hold that in nocase can a misjoinder of charges or a failure to try the chargesseparately be an irregularity within the meaning of section 537 ofthe Code of Criminal Procedure (Section 425 of our old CriminalProcedure Code)."
In Kadiri Koya Haji's case (supra) (4) the Magistrate framed separatecharges and numbered them as calendar cases Nos. 4 & 5 of 1914.,But when the witnesses came to be cross-examined he lost sight ofthe necessity for keeping the two trials separate and allowed thewitnesses to be cross-examined promiscuously in respect of bothcharges. Under those circumstances, it was held that the trialoffended against the provisions of section 233 (section 178 of our oldCode) which was an illegality vitiating the trial in its entirety. That was acase where the trial itself was defective.
Subramania’s case (supra) (2) was considered in a later PrivyCouncil decision and it was held that the bare fact of failure to complywith the mandatory provisions of a section unaccompanied by a failureof justice is not enough to vitiate the proceedings which may becovered by sections 535 and 537. Abdul Rahuman v. The KingEmperor (5). In that case, at the trial the depositions of witnesses wereread over to them while the case otherwise proceeded and those ofsome witnesses were handed to them to read. Section 360 of theCode of Criminal Procedure provided that the deposition of eachwitness shall be read over to him in the presence of the accused or hispleader.
The Privy Council held that as there had been no actual or possiblefailure of justice the appeal failed whether the section had or had notbeen properly applied. Lord Phillimore said:
"To sum up, in the view which Their Lordships take of the severalsections of the Code of Criminal Procedure, the bare fact of such anomission or irregularity as occurred in the case under appeal,unaccompanied by any probable suggestion of any failure of justicehaving been thereby occasioned, it is not enough to warrant thequashing of a conviction, which in their Lordships' view may besupported by the curative provisions of sections 535 and 537."
On the strength of Abdul Rahaman's case (supra) (5) the view wastaken in later decisions that even what was termed an illegality, i.e.,the ignoring of express and imperative provisions of law, will becovered by section 537 unless it has actually occasioned a failure ofjustice, and that whether it is an irregularity or illegality, the solecriterion is whether there has been actually a failure of justice. The testto be applied is whether the accused had a fair trial in spite of thetransgressions of the prescribed rule or procedure (Sarkar-Law ofCriminal Procedure-2n6 Ed. 996).
Section 111(7) of the Administration of Justice Law gives the courtthe discretion to charge and try together or separately more personsthan one who are accused of different offences committed in thesame transaction.
In the present case the six accused appellants were charged on thefirst count with abducting Arnolis Silva, while the other six accusedwere charged on the second count with committing mischief to thehouse and property of Arnolis Silva in the course of the sametransaction. No objection to the joinder of charges was raised at thetime the accused were charged, nor was an application made forseparate trials.
In King v. Dharmasena (6) the Privy Council held that in regard tojoinder of charges and accused persons as provided by sections 180and 184 of the Criminal Procedure Code (the same as section 111 (2)& 111(7), A.J.L.)-
"The time at which it fails to be determined whether theconditions that the offences alleged had been committed in thecourse of the same transaction had been fulfilled, is the time whenthe accusation is made and not when the trial is concluded and theresult is known."
Lord Porter referred to the decision in Babulal Choukhani v. The KingEmperor (7) where the same principle was laid down by the PrivyCouncil and said that-
"The charges have to be framed for better or worse at an earlystage of the proceedings and it would be paradoxical if it could notbe determined until the end of the trial whether it was legal or illegal.It was for the Judge bearing these considerations in mind to use hisdiscretion."
Dharmasena’s case (supra) (6) was in fact, one where before thetrial opened, counsel for each of the two accused made an applicationthat their respective clients should be tried separately, claiming thatthey would be seriously prejudiced if tried together. The application,however, was refused. See also Wimalasena v. I. P. Hamabantota (8)and King v. Kitchilan (9).
In the present case the two charges framed against the two sets ofaccused were simple and uncomplicated unlike in the case ofSubramania where there were 41 acts referred to in the charge and aclear disregard of a provision of law which prohibited the trial of aperson for 3 offences of the same kind, unless committed within aperiod of 12 months.
In Kadiri Koyar's case (supra) (4) the trial itself was defective. InJonklaas v. Somadasa (supra) (1) several acts of stone throwing werecommitted by different accused at different times and places and inrespect of the property of different persons. These cases aredistinguishable from the facts of the present case.
In the present case there was no patent defect in the joinder of thetwo charges against the two sets of accused. On the first count thefirst six accused were charged with abducting Arnolis Silva from hishouse. On the second count the other six acused were charged withcausing mischief in respect of the house of Arnolis Silva very shortlyafter he was abducted from it, the motive apparently for both actsbeing election rivalry. It was subsequently only that the evidencerevealed that the second incident had occurred ten minutes after thefirst and the Court of Appeal found the evidence to be consistent withthere being two separate and unconnected incidents so that the"sameness" of the transaction was not established. No prejudicehowever was shown to have been sustained by the appellants byreason of the joinder of the second count against the other sixaccused. No objection to the misjoinder was raised by them at thetrial. Each set of accused was charged on separate counts. Noevidence was led that one group of accused participated in theincident in which the other group was involved. There was noconfusion in regard to the accused who were implicated in eachcount. The appellant could not in any way have been prejudiced by theevidence led of the second incident against the other six persons. Inmy view, the misjoinder has not prejudiced the appellants and
occasioned a failure of justice. It amounts to an irregularity that iscurable under section 436 of the Code of Criminal Procedure Act No.15 of 1979.
Section 436 of the Code of Criminal Procedure Act (which isidentical with section 425 of the old Criminal Procedure Code) states:
"Subject to the provisions hereinbefore contained any judgmentpassed by a court of competent jurisdiction shall not be reversed oraltered on appeal or revision on account-
of any error, omission or irregularity in the complaint, summons,warrant, charge, judgment, summing up or other proceedingsbefore or during trial or in any inquiry or other proceedings underthis code;
of the want of any sanction required by section 135, unlesssuch error, omission, irregularity or want has occasioned afailure of justice."
Learned counsel's submission that the misjoinder of charges is anillegality which vitiates the conviction of the appellants must thereforefail.
Learned counsel for the appellants next contended that theMagistrate had no jurisdiction to try the appellants under the A.J.L. forthe offence of abduction (section 356 Penal Code), because themaximum punishment prescribed for the offence exceeded sevenyears' imprisonment and the Magistrate was precluded from tryingsuch an offence under the proviso to section 31 (1) of the A.J.L.
Section 31(1) reads as follows
(a) A Magistrate's Court shall have jurisdiction' and is herebyrequired to hear, try and determine in the manner provided forby written law, all prosecutions instituted therein against anyperson in respect of any offence committed wholly or in partwithin its division;
Provided that no Magistrate's court shall try any offence inrespect of which the maximum punishment is in excess of sevenyears' imprisonment or a fine of seven thousand rupees.
Sub-section (2) sets out the sentencing powers of a Magistrate'scourt which are:-
imprisonment for a term not exceeding eighteen months;
fine not exceeding one thousand five hundred rupees;
any lawful sentence combining any two of the sentencesaforesaid.
Section 356 of the Penal Code provides that whoever abducts anyperson "shall be punished with imprisonment of either description for aterm which may extend to seven years, and shall also be liable to fine".
Learned counsel submitted that since the accused were also liableto a fine under this section, it was a punishment that is additional toand in excess of the maximum of seven years' imprisonmentstipulated in the proviso to section 31 (1) of the A.J.L. and outside thejurisdiction of the Magistrate's court.
But section 53(4) of the A.J.L. which makes transitional provisionsfor cases pending at the time of the A.J.L. came into operation, statesthat:-
"All actions, proceedings or matters pending in Magistrates’courts established under the Courts Ordinance.. .on the daypreceding the appointed date shall stand removed to theappropriate Magistrate's court established under this Law, and suchMagistrate's court shall have jurisdiction to hear and determine or tocontinue and complete the same, and the judgments and orders ofthe aforesaid courts delivered or made before the appointed dateshall have the same force and effect as if they had been delivered ormade by a Magistrate's court established under this Law.
Provided that all pre-trial proceedings of a non-summary natureshall not be so removed, but shall terminate and be dealt withthereafter in the manner provided in Chapter II of this Law."
The Magistrate had charged the accused after assuming jurisdictionas an A.D.J. under section 152(3) of the repealed Criminal ProcedureCode. This procedure was abolished by the A.J.L. but it did not affectthe proceedings taken under section 152(3) of the old Code since the
Magistrate after assuming jurisdiction as A.D.J. still remained aMagistrate. Section 152(3) of the Criminal Procedure Code merelyconfers the punitive powers of a District court on the Magistrate, buthe acts as a Magistrate, and not as a District Judge. Madar Lebbev. Kiribanda (10).
These proceedings were therefore pending in a Magistrate's courtestablished under the Courts Ordinance and stood removed to theappropriate Magistrate's court established under the A.J.L. by virtueof section 53(4) immediately that Law came into operation. Section53(4) invested the Magistrate's court to which these proceedings hadbeen transferred, with a special jurisdiction to "hear and determine"them, unrestricted by the proviso to section 31 (1) of the A.J.L.
Learned counsel however contended that when the Magistratecharged the appellants again on 10.3.77, he started proceedingsanew and thereby stripped himself of jurisdiction to "hear anddetermine" the proceedings under section 53(4) of the A.J.L.inasmuch as they were no longer pending. They were not acontinuation of the proceedings that commenced with the charging ofthe appellants in terms of section 152(3) of the Criminal ProcedureCode. It is true the appellants were charged afresh on 10.3.77 and,although the Form of the Charge Sheet used, is Summary Form 1Athat was prescribed under the repealed Criminal Procedure Code, it isquite clear that the charge was framed under the A.J.L. In fact after theA.J.L. came into operation, all further proceedings had to be takenunder that Law. That this was what the Magistrate did is borne out byhis reference to section 168 which he had to comply with at the closeof the prosecution case.
But as for Learned counsel's submission that the fresh chargeconstituted a new proceeding, I regret I am unable to agree. Thecommencement of proceedings in a Magistrate court is not the stagewhen the accused is charged but when they are instituted undersection 148(1) of the Criminal Procedure Code. Chapter XV whichlays down the procedure for this, is entitled: 'Of the Commencementof Proceedings before Magistrate's Courts", and section 148(1)states that proceedings in a Magistrate's court shall be instituted inone of the several ways set out in sub-sections (a) to (f). It is at thatstage that the Magistrate takes cognizance of the offence and decideswhether he is to take action or not. If he decides to take action, hemay record evidence with a view to issuing process in cases where Jthe -accused is not before him, and when the accused is brought up, hecharges him and records his plea under section 187(3). It is thereforemanifest that the proceedings commenced when they were initiatedbefore the Magistrate in terms of section 148(1) of the CriminalProcedure Code and not at the stage when the accused werecharged. The corresponding sections in the A.J.L. relating to theinstitution of proceedings and the charging of the accused, are 163and 166 respectively.
Learned counsel laid emphasis on the words "hear and determine"which suggested the stage of the trial after the accused are charged,in support of his contention. But it will be noted that provision is madefor the taking of evidence even before the accused is charged. Thewords "hear and determine" therefore do not relate only to the stageafter the accused is charged and put on trial. They apply equally to theproceedings taken prior to the charging of the accused. I am thereforeof opinion that the Magistrate had jurisdiction to "hear and determine"the proceedings after charging the appellants afresh, since theproceedings that had commenced under section 148(1) of therepealed Criminal Procedure Code were still pending and stoodremoved to the new Magistrate's Court established under the Law.This submission of learned counsel must also fail.
The findings of fact reached by the Magistrate, were not canvassed.in this court, and have been affirmed by the Court of Appeal. I see noreason to interfere with these findings. I accordingly affirm theconviction and sentence imposed on the appellants and dismiss the ■appeal.
SHARVANANDA, C.J.-I agree.
H. A. G. DE SILVA, J. – I agree.
LIONEL v. OFFICER-IN-CHARGE, MEETIYAGODA POLICE STATION