035-NLR-NLR-V-53-MENDIS-SINGHO-Appellant-and-ATTAPATTU-inspector-of-Police-Respondent.pdf
Mendis Singho v. Attapattu
167
1081
Present : Swan J.
MENDIS SINGHO, Appellant, and ATTAPATTU(Inspector of Police), Respondent
S. C. 745—M. C. Gampaha, 56,845
Criminal Procedure Code, s. 152 (3)—Assumption of jurisdiction thereunder—Powerof Court to try case de novo as Magistrate.
Once a Magistrate who is also a District Judge has assumed jurisdiction as aDistrict Judge and tried a case in that capacity he should deliver judgment.He. is not entitled to try the case de novo as Magistrate even though the offencein question is summarily triable by a Magistrate’s Court.
1 S. C. Minutes of 30.1.61—S. C. 1200jM. C. Matara, No. 19949.
* (1929) 30 N. It. R. 410.
168
SWAN J.—Mendis Singho o. AttapaUu
PPEAL from a judgment of the Magistrate’s Court, Gampaha.
Asoha Obeyesekera, with R. WanasuAdera, for the accused appellant-V. O. B. Per era, Crown Counsel, for the Attorney-General.
Cur. .adv. vulf..
October 10, 1951. Swan J.—
In this case the learned Magistrate has been guilty of an irregularitywhich, in my opinion, vitiates the entire proceedings. The charge wasone of mischief under Section 412 of the Penal Code. The case first cameup on August 21, 1950, before Mr. F. E. Alles, Magistrate of Gampaha.After recording the evidence of the chief witness for the prosecution, thelearned Magistrate who was also an additional District Judge decided toassume jurisdiction as District Judge and so informed the accused. Theaccused was then charged from the charge sheet and he pleaded not guilty.Trial was fixed for October 2,1950. After two postponements
the case came up for trial on December 4, 1950, before Mr. Gunawar-dene, Additional Magistrate, who was also an Additional District Judge..He proceeded to try the case in the latter capacity. After hearing the evi-dence for the prosecution and for the defence and the trial was concluded,,and after learned Counsel for the defence had addressed the Court, thelearned District Judge made the following order:—“ I find at this-stage -that Section 412 is summarily triable by D. C. as well as M. C.,.I therefore charge accused from S. F. (1). Accused states ‘ I am not.guilty. ’ Trial December 11, 1950. ”
At the second trial Mr. Gunawardene purported to act as Magistrate andafter hearing the evidence for the prosecution and the defence convictedthe accused and sentenced him to pay a fine of Rs. 75.
The course adopted by the learned Magistrate appears to me to be-entirely irregular. Once he had assumed jurisdiction as a District Judge-and tried the case in that capacity he should have delivered judgment.Whether or not he was right in assuming such jurisdiction was a matterthat this Court alone could have considered either on appeal or by wayof revision or review. I do not think he had any right to try the case de-novo as Magistrate.
Learned Crown Counsel who appeared ' for the respondent agreed!that the procedure was irregular – and vitiated the proceedings.The only further question I have to consider is whether I should order a.re-trial. I do not think I should. On the facts I would say that the-charge of mischief under Section 412 cannot be sustained.
I therefore quash the conviction and acquit and discharge the-accused.
Appeal allowed-