M. P. WILLIAM, Appellant, and INSPECTOR OF POLICE, MIRIGAMA, Respondent

087-NLR-NLR-V-72-M.-P.-WILLIAM-Appellant-and-INSPECTOR-OF-POLICE-MIRIGAMA-Respondent.pdf


406
• William v. Inspector of Police, Mirigama
1969Present: Wijayatilake, J.
M.P. WILLIAM, Appellant, and INSPECTOR OF POLICE,MIRIGAMA, RespondentS. G. 969/6S—M. C. Gampctha, 19645JB
Criminal procedure—Magistrate's Court—Trial of indictable offence with offencestriable summarily—Failure of Court to assume jurisdiction under s. 152 (3)of Criminal Procedure Code—Effect—Criminal Procedure Code, ss. 152 (3),ISO (7), 425.
'Where a number of offences nro alleged to have been committed in the coursoof tho same transaction, the joinder, at one summary trial, of an indictableoffenco with offences triable summarily vitiates the entire proceedings if thoMagistrate omits to assume jurisdiction in terms of section 152 (3) of thoCriminal Procedure Code. In such a case, the mere fact that the accused hasbeen acquitted in respect of the indictable offenco is of no consequence.
Ramasamy v. Gunurat/ie (72 X. L. It. 187) followed.
Joseph v. Tf’oodfr (72 X. L. It. 213) not followed.
Appe AL from a judgment- of the Magistrate’s Court, Gampaha.
S. C. E. Rodrigo, for the accuscd-appcllant.
So rath Si lea, Crown Counsel, for the Attorney-General.
Cur. nda. vuU,* (1967) 72 X. L. R. 306.
\ I JAYATiLAKE, J.—IPittiam v. Inspector of Police, Alirigama407
June 17, 1969. Wijayatilake, J.—
A very important question with regard to the failure on the part of
the learned Magistrate to assume jurisdiction under section 152 (3) of
the Criminal Procedure Code has been raised in this Appeal.
The accused was charged under five counts :
That he held out threats toapublic servant—G. V. Madurapperuma,Grama Sevaka No. 16 … with intent to cause alarm tothe said Grama Sevaka an offence punishable under section 1S6of the Penal Code.
At the same time and place and in course of the same transactionhe did attempt to cause simple hurt to the said public servant
. .an offence punishable under section 323/490 of the PenalCode.
That in the course of the same transaction he did intentionally
insult the said Grama Sevaka …. an offence punishableunder section 4S6 of the Penal Code.—
Or in the alternative to count 1 he did commit criminalintimidation to the said Grama Sevaka an offence punishableunder section 486 of the Penal Code.
Or in the alternative to count 2 above in the course of the said
transaction as set out in counts 1, 2 and 3 he did attempt to assaultthe said Grama Sevaka … .an offence punishable under
Section 314/490 of the Penal Code.
As would appear from the Schedule to the Criminal Procedure Codecount 1 under Section 1S6 of the Penal Code is not triable by theMagistrate’s Court. However, the Magistrate could have, if he was soinclined, assumed jurisdiction under section 152 (3) of the CriminalProcedure Code and proceeded to trial summarily. The learnedMagistrate has failed to do so. There is nothing on the face of the recordto show whether he had given his mind to the question of jurisdictionat all. He had purported to try the accused on all the counts asMagistrate. After “trial” he had acquitted the accused under count1 and convicted him under counts 2 and 3. As I have already statedcounts 4 and 5 are alternative to counts 1 and 2.
Mr. S. C. E. Rodrigo, learned counsel for the appellant, submits thatall the proceedings at the trial have been vitiated as the Magistrateclearly had no jurisdiction to proceed to trial on count 1. If he was soinclined he could have assumed jurisdiction but he has failed to do so.
Mr. Rodrigo submits that it is clear on the face of the charge sheet thatthere has been a joinder of the charges as contemplated in section ISO (1)of the Criminal Procedure Code as all the acts alleged refer to the sametransaction. He accordingly submits that it is clear that despite theseveral charges there has been only one trial. The Magistrate havingacted outside his jurisdiction in seeking to try the accused under count
40S
WIJAYATH.AKE, J.—
William v. Inspector of Police, Mirigama
1 the proceedings would be illegal ab initio in respect of all the counts.In my opinion this is a substantial objection. The mere fact that theaccused was acquitted under this particular count is of no consequenceif the proceedings in Court do not constitute a “ trial ” within the meaningof the Criminal Procedure Code. The counts 2 to 5 were triable by theMagistrate but as would appear from the Charge Sheet these oountshave been joined with count 1. I do not think the trials in respect ofthe five counts are severable. It is one trial and the Magistrate haspurported to so record the evidence in respect of all the counts. If theMagistrate had no jurisdiction to do so in respect of count 1 and heproceeded to record evidence at this trial clearly he was acting illegal^'.I do not think such an illegality can be cured b}7 resorting to section 425of the Criminal Procedure Code.
My attention has been drawn to two recent judgments of this Courtwhich dealt with an analogous situation, except that in the instantaction the accused lias been acquitted under the count in question. InJRamasamy et at. v. Gunaralna1 Pandita-Gunawardene J. held that itis not permissible to separate an illegal trial from the trial on the countstriable by a Magistrate where there has been a joinder of charges irndersection 180 (1) of tire Criminal Procedure Code and that an illegality ofthis nature is not curable under section 425 of the Criminal ProcedureCode, de Kretser J. in the case of Joseph v. Wooller2 has discussed thisjudgment at length and he has taken a different view. I have givenmy anxious considerat ion to the matter befoi-e me in the light of theseconflicting decisions but with groat respect I am inclined to adopt theprinciple as set out by Pandita Gunawardcno J. I do not see how theprinciple set out by Ennis J. in the case of King v. Jayasinghe3 cansalvage this case, the proceedings at the Trial being illegal ab initio.With great respect- I am unable to subscribe to the view that the trialsare severable in o situation such as this where there has been a joinderof charges relating to the same transaction. Furthermore, how is itpossible to distinguish the evidence led in respect of count 1 from therest of the evidence ?
Here we are concerned not with the sentences the Magistrate hassought to impose but with something more fundamental and that iswith the verdicts he has pronounced on the ‘‘' evidence ” led. If it was anillegality or irregularity in regard to the sentences we could invoke theprovisions of section 425 of the Criminal Procedure Code but in a situationsuch as this where in fact there has been no trial as the Magistrate hadno jurisdiction, in my opinion, it would not be open to this Court toinvoke these provisions.
I would accordingly quash the proceedings and send the case back forproceedings de novo before another Magistrate.
Proceedings quashed.
1 {JOGS) 72 X. L. n. 1S7 ; 75 C. L. W. 85.■ (10G0) 72 X. L. R. 213.
* (1015) IS Ar. L. R. 374.