006-SLLR-SLLR-2005-V-2-PIYASENA-vs-OFFICER-IN-CHARGE-POLICE-STATION-MAWARALA-AND-ANOTHER.pdf
CA
Piyasena vs Officer in Charge, Police Station, Mawarala
and Another (Wijayaratne J)
3 1
PIYASENAVSOFFICER IN CHARGE, POLICE STATION, MAWARALA ANDANOTHERCOURT OF APPEALWIJAYARATNE JSISIRADE ABREW JCA 77/2005H.C. MATARA 75/2004M. C. MORAWAKA – 67009
Penal Code – Section 315 – Primary Court Procedure Act – Section 25(1) -Assumption of jurisdiction of the Primary Court by Magistrate – Trial of accusedwithout plea being recorded – Validity? – Applicability of the Mediation BoardsAct-
HELDThe Magistrate had proceeded to the trial of the accused without himbeing charged and without his plea being recorded – which is a materialirregularity which nullifies the legal effect of all the proceedingsthereafter.
As regard Section 315 Penal Code, in terms of the Mediation BoardsAct, Court is not permitted to take cognizance of such offences withouta Certificate from the Mediation Board.
Magistrates in certain circumstances are empowered to takecognizance of matters falling within the jurisdiction of the PrimaryCourt – this is by way of assumption of jurisdiction of the Primary Courtand not by way of exercising the jurisdiction of the Magistrate.
AN APPLICATION in Revision from the Order of the High Court of Matara.
Razik Zarook with Rohana Deshapriya for Petitioner.
Anoopa de Silva, S. C., for the Attorney General.
Cur. ad. vult
August 26, 2005
WIJAYARATNE, J.This is an application to revise the order of the learned High CourtJudge dated 03.02.2005 refusing an application to revise the order of theMagistrate of Morawaka convicting the petitioner of an offence under section
32
Sri Lanka Law Reports
(2005) 1 Sri L. R.
315 of the Penal Code reported to the Magistrate of Morawaka under theprovisions of section 25(1) of the Primary Court’s Procedure Act. LearnedHigh Court Judge has held that this is a mere technicality and the offencepunishable under s. 315 is one cognizable by the Magistrate and thereforehe did not proceed with this application. Further it appears from theproceedings before the learned Magistrate of Morawaka that the Accusedwho was present in court on summons was put on trial without his pleabeing recorded. There is no minute what so ever of his being charged orwhat his plea was. Accordingly we presume that the learned Magistratehad proceeded to the trial of the accused without him being charged andwithout his plea being recorded, which is a material irregularity whichnullifies the legal effect of all the proceedings thereafter. The learned StateCounsel also concedes this fact. In such an event the court is obliged toquash the proceedings and direct a re-trail of the accused on the chargespreferred against him.
More over, we find that the procedure of charging the accused is alsonot accord with the laws. A charge under section 315 of the Penal Codereported to the learned Magistrate of the area in terms of the provisions ofsection 25(1) of the Primary Court’s Procedure Act. The Magistrate incertain circumstances is empowered to take cognizance of matters fallingwithin the jurisdiction of the Primary Court. However, it is by way ofassumption of jurisdiction of the Primaiy Court and not by way of exercisingthe jurisdiction of the Magistrate. It is also further revealed that the accusedwas charged with an offence punishable under section 315 of the PenalCode and convicted of same. In terms of the provisions of Mediation BoardAct, Court is not permitted to take cognizance of such offences without acertificate from the Mediation Board. For all these reasons, we are unableto refer this matter to a fresh trial by the learned Magistrate. Accordingly,all the proceedings and the conviction and sentence imposed by the learnedMagistrate of Morawaka and the order dated 03.02.2005 made by thelearned High Court Judge of Matara are all quashed and set aside. However,this order will not operate as a bar in the event of fresh proceedings beinginstituted under the relevant provisions of law if the prosecution so wishes.Application for revision is allowed.
SISIRA DE ABREW, J. I agreeApplication allowed.