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P. G., Balapitiya, 15,121.
Jurisdiction—Prosecution directed by Police Magistrate—Incompetency of
Magistrate to try.
On-information given to the Police Magistrate by the proctor of aparty to a case that one of his witnesses had been interfered with bythe accused, the Police Magistrate directed a Sergeant-Major ofPolice to charge the accused under Ordinance No. 11 of 1894—
Held, that it was hot competent to the Police Magistrate to trythe charge so instituted.
f’J'THE facts of the case appear in the judgment of his Lordship.
Pereira, for accused, appellant—The Police Magistrate directedthe prosecution, and he was virtually the complainant in the case.A Magistrate must have a free hand, not only to convict or acquitan accused, but to do whatever else the justice of t8e case mayrequire. The case may be one, for instance, in which the accusedshould get compensation from, the complainant; but it would behbpeless to expect the Magistrate to hold that the prosecution wasfrivolous or vexatious, and award compensation. The Magistrate,
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in a case like this, will not only have a strong inclination to decidein favour of the prosecution, he having started it, but he has nota free hand to do full justice between party and party.
Cooke, C. C., for complainant, respondent, cited 7 8. C. C. 36.
3rd June, 1896. Bonseb, C.J.—
This is a conviction under what is commonly called the Touts’Ordinance, No. 11 of 1894. The appellants were convicted ofhaving intermeddled with certain witnesses in a case that was beingtried in the Balapitiya Police Court, and having caused them to leavethe Court and not give evidence. The prosecution came about thisway. The Police Magistrate was trying a case, and the counselfor the accused brought to his notice the fact that two of his witnesseshad been interfered with and sent away from the Court. Thereuponthe Police Magistrate directed the Sergeant-Major of Police to chargethe appellant under the Ordinance. The Sergeant-Major at oncefiled a written plaint charging them with the offence in question, onwhich the Police Magistrate then and there made an order for theissue of summons. The objection has been taken that the PoliceMagistrate is the actual prosecutor in the case, and therefore heought not to have tried the case. J think the contention is sound.The Sergeant-Major knew nothing about the matter. He merelyobeyed the orders of the Magistrate. I cannot understand anyMagistrate directing a Sergeant-Major or anybody else to file aplaint. What he might properly have said to the Sergeant-Majoris this: “ I have reason to believe that an offence has been com-“ mitted. I call your attention to it. You should make inquiry,“ and if the result of such inquiry prove satisfactory, institute“ proceedings.”
If that had been done, there would have been no objection toihe Magistrate hearing the case, for the responsibility of institutingthe charge would haver rested upon the police officer. At presentthe whole responsibility rests upon the Magistrate, and he is virtuallyboth prosecutor and judge. Therefore, in my opinion, the con-viction should, be quashed and the cass remitted to the PoliceMagistrate of Galle for trial. I have not heard the evidence read,and know nothing about it, and I express no opinion whatever onthe merits.
PERIS v. SAMANIS