114-NLR-NLR-V-74-P.-D.-C.-PEERIS-and-another-Petitioners-and-INSPECTOR-OF-POLICE-CRIMES-KALUT.pdf
WIJAYATILAKE, J.—Peeris v. Inspector of Police, Crimes, Kalutara
470
Present: Wijayatilake, J.
P. D. C. PEERIS and another, Petitioners, andINSPECTOR OF POLICE, CRIMES, KALUTARA,Respondent
■S. C. 001-602/70—Application in Revision in 31. G. Kalutara, 44067
Conciliation Boards Act—Section II—Requirement of Chairman's certificate—Scope oj it3 applicability in specified criminal cases.
Where a person has been convicted in a Magistrate’s Court in a case whichshould have in tho first instance come up before a Conciliation Board, thoconviction may be set aside in revision by tho Supremo Court if tho prosecutingpolice officer failed to produce before the Magistrate a certificate from thoChairman of tho Conciliation Board. In such a case tho ignorance of thoprosecuting officer should not prejudice the accused.
A''./APPLICATION to revise an order of the Magistrate’s Court, Kalutara.
A. G. de Zoysa, with Jayatissa Herath and Justin Perera, for the 1st
and 2nd accused-petitioners.
Ki IV. D. Perera, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 14, 1971. WijayaYILatce, J.—
Learned Counsel for the petitioners submits that the learned Magistratehad no jurisdiction to try this ease as a certificate under Section 14 ofthe Conciliation Boards Act- has not been filed. He states that accordingto Government Gazette No. 14,S21 of 27.9.GS a Conciliation Board hasbeen set up in this area and therefore this case should have in tjiefirst instance come up before the Conciliation Board the charges beingunder Sections 314 and 410 of the Penal Code and the date of offencebeing 24.3.70. My attention has been drawn by Mr. de Zoj^sa to thecases of Samarasinghe v. Samarasinghe1 70 N.L.R. 276 and Nonahamy v.Halgrat Silva 2 73 N.L.R. 217. Ho never, learned Crown Counsel seeksto meet the objection to jurisdiction by relying on the judgment inRobin-son Fernando v. Henrietta Fernando^ SO C.L. W. 14. I do notsee how this judgment can be of any avail to the respondent. Thecomplainant in this case being the Inspector of Police, Kalutara, it wasclearly his duty to produce a certificate from the chairman of theConciliation Board before pursuing this prosecution before the Magistrate.In my opinion even at this stage the appellant is entitled to take thisobjection. In fact as set out by Samerawickrame J. in the above case1 {1957) 70 N. L. R. 276.» {1970) 73 N. L. R. 217.
* (1971) SO C. L. TV. 14 ; 74 N. L. R. 57.
480 WIJAYATILAKE, J.—Peeris v. inspector of Police, Crimes, Kalulard
reported in 80 C.L.W. 14 “ where the want of jurisdiction is patent,objection to jurisdiction may be taken at any time. In such a caseit is in fact the duty of Court itself ex mero ?nolu to raise the point ovenif the parties fail to do so”. In the instant case on a perusal of thecharge sheet it should have been xoatent that the Magistrate had nojurisdiction in tho absence of a certificate from the Conciliation Boardas Sections 314 and 410 of the Penal Code are clearly set out in theschedule to the Conciliation Boards Act.
The prosecuting officer should have drawn the attention of theMagistrate to the want of jui-isdiction at the commencement of theTrial. The fact that he was not aw arc of a Conciliation Board exercising .jurisdiction in this area should not prejudice the accused in this regard.It would be well for the Police to give their mind to this question at thocommencement of proceedings of this nature. Magistrates too if theyhave before them a map of the Judicial District showing tho jurisdictionof the Conciliation Boards, if any, the difficulties which arise, such as inthe instant case, could be avoided.
I would accordingly set aside the convictions and discharge theaccused.
Convictions set aside.
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