199-NLR-NLR-V-47-PANCHA-Appellant-and-VELO-S.-I.-.Police-Respondent.pdf
DIAS J.—Pancha v. Veloo.
567
1946Present : Dias J.
PANCHA, Appellant, and VELOO (S. I., Police), Respondent.1,176—M. C. Gampaha, 31,891.
Housebreaking by night—Summary trial-under Criminal Procedure Code, 8. 152(3)—No ground, by itself for setting aside conviction—Penal Code, s. 443.
The summary trial, under section 162 (3) of the Criminal ProcedureCode, of a case of housebreaking by night is not by itself sufficientground for setting aside the conviction of the accused.
yy PPTCAT, against a conviction from the Magistrate’s Court, Gampaha.
H. W. Jayewardene, for the accused, appellant.
J.G. T. Weeraralne, C.C., for the Attorney-General.
Cur. adv. milt.
October 29, 1946. Dias J.—
The appellant was charged with the offences of housebreaking by nightand theft from a dwelling house under sections 443 and 369 of the PenalCode. These offences are not summarily triable. The Magistrate,however, assumed jurisdiction under section 152 (3) of the CriminalProcedure Code and after trial convicted and sentenced him to undergosix months’ imprisonment in the aggregate.
{1941) 22 C. L. W. 57.
568
Perera v. Johor an.
The only point taken in appeal is that the Magistrate should havetaken non-summary proceedings and committed the appellant for trialbefore a higher Court.
There are conflicting authorities on this point. In Darihia v. Donhamy 1and Smith v. Peleck Singho 2 it was laid down that a charge of house-breaking by night cannot be dealt with summarily under section 152 (3).On the other hand, in Appu v. Bdbun 3 Ennis A.C.J. said :—“ Althoughit is a counsel of perfection that ordinarily cases under section 443 of thePenal Code should not be tried summarily, and this has been commentedon over and over again by the Supreme Court, at the same time it doesnot by itself afford necessarily a sufficient ground for setting aside theconviction and sending the case back for non-summary trial ”. InKotiyagala v. Alagiri 4 Poyser J. held that an offence under section 443could be tried under section 152 (3). In the unreported case S. C. 776M. C., Colombo, No. 47,232 (S. C. Min. November 24,1942) Eeuneman J.following Appu v. Bdbun (supra) held that such a trial does not by itselfvitiate a conviction for housebreaking. In Nadarajah v. Gopalan5Dalton J. queried whether the summary trial of an offence of housebreak-ing under section 152 (3) of the Criminal Procedure Code would haveto be discontinued because the accused was a “ reconvicted criminal ”.The order made by the learned Judge is interesting:—“ The proceed-ings, therefore, will be set aside …. and the case remitted fornon-summary proceedings before another Magistrate. If, on a trialfollowing such non-summary, proceedings, a plea of autrefois convict isupheld, these proceedings and the conviction, the subject matter of thisapplication, will stand ”.
I think the point of law fails. I have read through the proceedingsand can find no sufficient grounds for setting aside these proceedings andsending the case back for non-summary proceedings. The appeal isdismissed.
Appeal dismissed.