098-NLR-NLR-V-18-MADAR-LEBBE-v.-KIRI-BANDA-et-al.pdf
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[Fran Bbnch.]
Present: Wood Benton G.J. and Ennis and De Sampayo JJ.
MADAB LEBBE u. KIBI BANDA et ah1,618-23—P. C. Kandy, 203.
Criminal Procedure Code1 section 152(3)—Police Magistrate acts a*
Magistrate, and not as District Judge, token exercising the powers'conferred by this section—He mag act' under this section eeen tokenaccused is charged with offences some of which are triable summarilyand others by a District Court.
A Police Magistrate who is also a District Judge, when exercisingtiie punitive powers conferred upon him by section 152 (3) of theCriminal Procedure Code in respect of offences triable by a DistrictCourt and not summarily by a Police Court, acts as a Police Magistrate,and not as a District Judge. If the offence is one triable bythe Police Court, the Police Magistrate has jurisdiction without anyreferenceto section 152(3),( and ifhearrogates to himself higher
punitive powers by purporting to act under that provision, theinfliction of any punishment beyond the Potice Court limit doesnot by itself vitiate a conviction, but it is an irregularity which maybe cured as regards thesentence bytheinterference of the Supreme
Court in revision.
There is no objection to a Police Magistrate applying section152 (3)to a case wherean accusedischarged with several offences,
some ofwhich are triable summarilybythe Police Court and others
are not, provided he inflicts no higher punishment in respect ofthe lower offences than he has ordinary jurisdiction to impose.
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ON-SUMMARY proceedings were taken against the accusedunder sections 140, 144, 146, and 439 of the Ceylon Penal
Code. On an adjourned trial date tike accused were informed bythe Police Magistrate that they would be tried summarily by him inhis capacity as District Judge, under section 152 (8) of the CriminalProcedure Code. After trial they were convicted under sections 140and 144, and acquitted under sections 146 and 439. The firstaccused was sentenced to six months' rigorous imprisonment undersection 140, and two years' rigorous imprisonment and a fine ofBs. 2,500, in default an additional six months' rigorous imprisonment,under section 144. The second, third, fourth, and sixth accused
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were sentenced to six mo&Ahs' rigorous imprisonment under section140 and two Tears* rigorous imprisonment under section 144. Thefifth accused was bound ouer to be of good behaviour and to kebpthe peace for six months.
Bawa, K.G. (with him Dias), for the* accused, appellants.—Thecharge under section 140 of the Penal Code being one triable by aPolice Court as well as by a District Court, it was not competentfor the Police Magistrate to try such charge as District Judge undersub-section (3) of section 132 of the Criminal Procedure Code.
Counsel referred to 1,428-1,424—P. C. Balapitiya, 41,272, 1 and to1,087—P. C. Kandy, 97.*
1
Madar iebbev.
Kiri Banda
o
In any event, where accused are charged with several offences,all the offences must be “ triable by a District Court, and not sum-marily by a Police Court, ” to enable the Magistrate to act undersection 162 (3).
, In tiiis case the^offence under section 140 was triable by a PoliceCourt, and under section 144 was not triable summarily by a PoliceCourt. In such a case as this, it is not open to a Magistrate to actunder section 152 (3). The term “ offence *’ in section 162 (8)includes the plural, according to the Interpretation Ordinance.But it cannot be made to refer to some only of the offences withwhich the accused are charged. Where there are many offences,we must read “ offences ” instead of the word “ offence. ’*
V. Chenier, Groton Counsel, for the Crown (not called upon).
Cur. ado. vult.
October 29, 1915. Wood Bbntok C.J.—
This case was fully argued before me on October 22, and Ishould have had no difficulty in giving my decision at the close ofthat argument. But I thought it desirable to refer to a Bench ofthree Judges the question, in regard to which I understood that mybrother Ennis had taken a view, different to the one adopted byImyself in cases of this character, namely, whether the Police^Magistrate could exercise the punitive powers of an Additional Dis-trict Judge conferred upon him by section 152 (3) of the CriminalProcedure Code in regard to charges with which he had power todeal summarily. I gathered that the opinion of my brother wasthat this question should be answered in the affirmative. Thefurther argument before three Judges has sufficed to show, however,that the supposed conflict of judicial opinion upon this point doesnot exist, and has also served to disclose a practical method ofdealing with the difficulty which had not hitherto occurred to me.It! is clear from the language of section 152 '(3) of the CriminalProcedure Code, and we are' all agreed, that a Police Magistratecannot deal unde? that sub-section with charges within his ownoriginal jurisdiction, and wjiere he does so, the Supreme Court has1 S. C. Min*., Sept. 21, 1915.3 18 N. L. R. 874.
Sift
Vifaoo
Kumn CJ.
Jf a&r Idbhev.
Iftri ifofttia
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fee right*, if it thinks proper, to interfere. But on the other hand, as-my brothers Ennis and De Saznpayo, in decisions hitherto unreported,afid to'which my attention had not bedn called, have pointed out,there is nothing to*prevent the Supreme Court from treating the-trial as if it had been a* summary trial by the Police Magistrateas such,* and from affirming the conviction, with such modification,if any, as to the sentence as may be necessary to bring it within*the original Police Court jurisdiction. In the present case thesentences are concurrent. The sentence passed on each of theappellants under section 140 of the Penal Code is only one of sixmonths* imprisonment. I do not, therefore, feel called upon tointerfere.
At the argument before the Bench of three Judges the appellants*counsel argued that, where, as here, accused persons were chargedwith offences, some of which are, while others are not, triable by the*Police Court summarily, a Police Magistrate could not. act undersection 152 (3) of the Criminal Procedure Code even in regard tothe latter. I did not reserve this point, and I have repeatedlyover-ruled it in unreported cases in connection with the recent riots-with which I have had to deal.
The learned Police Magistrate has imposed upon the first accused-appellant a fine of Bs. 2,000, which exceeds the punitive jurisdictionof the District Court. That portion of the sentence must be modifiedby the substitution of a fine of Bs. 1,000. But; otherwise 1 agreewith the decision under appeal. I do not think that the PoliceMagistrate meant to say that he would have rejected the evidenceo£ the Moorish witnesses if it had stood alone. He only says thathe would have doubted its .truth if there had been no mention ofnames by Abusalibu till the institution of these proceedings. Buthe points out, and the evidence justifies the observation, that thenames of the accused were given by Abusalibu at once. In spiteof the previous proceedings in 69-71—D.C. (Criminal), Kandy,No. 20,721, he accepts the corroborative evidence of the headman,and informs us that he regarded the first accused as a most un-satisfactory witness. It i9 unfortunate that the Police Magistrateshould have referred to the caste of .the accused in such a way as to*lav a foundation for the suggestion that he considered it as creatingsome kind of probability of his guilt. But be has considered thewhole of the evidence with great care, and I see no reason t-o thinkthat his judgment was unconsciously influenced by any considera-tions of this character. Subject to the modification indicated aboveas to the fine of Bs. 2,000, I dismiss the appeals.
Ennis J.—
On the point reserved for the Full Court I am in agreement withmy Lord the Chief Justice* and have, in previous cases, expressedthe same opinion.
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Da t ipato 3.—^
I $ 'of ibB «yuwft opinion on both the points argued before uft MedavI he* myself- frequently dealt with cases, in aCao^ance with that jcw^oectoview .! tho law. fSe feet to be emphasized is that «h* PoliceMagisti tiie acts In iH ease* as . Police Magistrate and in cor*fom%with tn%» procedure hud down for the trial of oases in the PoliceCour . If Wv 'tffcnce is one which is triable by the Police Court,the ?c!iee Magistrate has jurisdiction without any reference toseetir i 159 {$) of the Criminal Procedure Code, and if he arrogatesto hi isalf Mgffier purifivs powers- by purporting to act under thatprovfcon, the inffio&m of any punishment beyond the Police Courtlimit toes itttv by itgdff vitiate a conviction, but is in my opinionan i?$t guSarify which may be cured as regards the sentence by theinterfe pace of the Supreme Court in appeal or in revision. Mr. Bawa,
:for & $ appellants, does not seriously contest this point, buthe strenuously argues that where an accused is charged in thesame proceedings 'With several offences, some of which are triablesummarily by the Police Court and others are not. section 152 (3)is not applicable at all, and that if for the purpose of trying the latter ^offences summarily the Police Magistrate gives himself jurisdictionunder that section, a conviction for all or any of the offences iswholly bad. The reasoning of counsel on this point is as follows.
The Interpretation Ordinance. 1901, enacts that words in the singularnumber in the language of an Ordinance shell include the plural,and hence the word “ offence ” is section 152 (3). being taken tomean “ offences " where several offences are embraced in the sameprosecution, all of them must be offences triable by the DistrictCourt* and not by the Police Court. I do not think that thisreasoning is sound. Undoubtedly (he word “ offence ” in (he abovesection includes *’ offences, M but in the case put the plural mustbetaken disfeributiveiv and not collectively. In my opinion there is.no objection .to a Police Magistrate applying section 152 (3) to acase where several offences o? two descriptions of gravity a£e con-cerned, provided of course He inflicts no higher punishment inrespect of tile lower offences than he has ordinary jurisdiction toimpose.
Varied.
1,423-1,424-'—Pt C. Balapitiya 41,272.
Zoffta, for accused, appellant-.
BaUrnngham, for complainant, respondent.
September 31, 1915. 3>s Sampayo J.—
Tho accused were charged with the offences (1) of house trespass undersection otiff of the Pfcnal Code and (2) of criminal misappropriation of certainproperty usdor section 38&. I shini the Police Magistrate came to a rightcondtrioa oxii the facts, hist in appeal a legal objection is taken to theprocedure adopted by him. An offence under' section 43? of the Penal Code is nottriable summarily by the Police -Court, but h triable by the District Court,and ml offecos uniter action 385 is triable both by -the Police Court and by
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ol915o the District Court.. In ease the Police Magistrate, oei&^^iso a Dietrich•" " – ° Judge, purported to act under section 153 (8) of the Criminal Procedure Code,aafidi recorded hie intention to try the accused summarily on both the abovechargee* The obfectionf so for as it affects the charge, under section &6, is-well founded, because the stage provision of feta Criminal Procedure Code doesnot authorise a Police Magistrate, where he has already summary juris-diction, to give himself higher punitive powers. But counsel for the accused:appellants further contended that the conviction, itself is ipso jure vitiated.
I cannot agree with him there, nor do I think that the decisions cited by hintare intended to gothat length. Misleading languageis often employedto
describe the natureoftheproceedings authorized bysection 152 (8). The
Police Magistrate, for instance, is said ** to act as District Jiftge/’ hut thiais wholly incorrect. The Police Magistrate acts and can only act as PoliceMagistrate, the only difference being that, bring also District Judge, he baapower to impose a sentence which ordinarily a District Judge may impose.This being so, the objection in such cases as the present can only be to thesentence and not to the conviction itself, and it is within the power of theSupreme Court in appeal to interfere with the sentence and sustain the con-viction. The wrong application of. section 152 (8) involves a mere irregularity,and where the sentence actually imposed is within the jurisdiction of the PoliceCourt, and no real prejudice is caused to the accused by the proceedings,there is no reason for interference in any respect. I am obliged to counsel forthe complainant-respondent for reference to the case 1,087—P. C. Kandy/*No. 97 (8. G. Mtn., Angust 27, 2925), in which I find Ennis J. took the sameview -of the. law.Inthepresent case the PoliceMagistrate imposedin
respect of each ofthetwooffences a fine of Bs. 25, which is withinhie
ordinary powers.
The appeal therefore foils, and is dismissed.
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