110-NLR-NLR-V-41-PUNCHI-MUDIYANSE-v.-JAYASURIYA.pdf
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HOWARD CJ.—Punchi Mudiyanse v. Jayasuriya.
[In Revision.]
1940Present: Howard C.J.
PUNCHI MUDIYANSE v. JAYASURIYA.
M.C. Ratnapura, 25,209.
Revision—Powers of the Supreme Court—Not limited to cases where there is noappeal—Criminal Procedure Code, s. 357.
The powers of revision vested in the Supreme Court under section 357of the Criminal Procedure Code are not limited to cases where there is noappeal or where no appeal has for some reason or other not been taken.The King v. Noordeen (13 N. L. R. 115) followed.
fJlHIS was an application for revision by the Solicitor-General.
Nihal Gunasekera, C.C., for the Solicitor-General.
R. C. Fonseka, for the accused, respondent.
Cur. adv. vult.
February 7, 1940. Howard C.J.—
This is an application by the Solicitor-General asking me to deal withthe proceedings in M. C. Ratnapura, No. 25,209, by way of revision underthe powers vested in the Supreme Court by section 357 of the CriminalProcedure Code. Counsel for the accused-respondent has taken thepreliminary objection that the revisionary powers of the Supreme Courtcannot be employed in a case such as this where the Solicitor-Generalcould have appealed under section 338 of the Code. In connection withthis contention I was referred to the case of Inspector of Police, Avisawellav. Fernando.' In that case the accused person had been warned anddischarged and the Solicitor-General made an application to revise thesentence. It was held by Mr. Justice Akbar that where the properremedy is by way of appeal, an application for revision will not be enter-tained save in exceptional circumstances. On the other hand it was heldby Wood Renton J. in The King v. Noordeen=, that the Supreme Court hasfull powers of revision in all criminal cases and that power is not limitedto those cases in which either no appeal lies, or for some reason or other anappeal has not been taken. The present case unlike that of Inspector ofPolice, Avissawella v. Fernando, which was an application for enhancementof sentence, involves the quashing of all proceedings before the Magistrateand an order that non-summary proceedings be taken on a charge of anoffence punishable under section 300 of the Penal Code. The SupremeCourt has been accustomed in such cases to make use of its revisionarypowers. Thus on an application by the Solicitor-General in M. C Badulla,case No. 29,123 (114), decided on April 4, 1939, Soertsz J. set aside anorder of the Magistrate made after a summary trial and imposing a fineof Rs. 20 on the accused and sent the case back with a direction thatnon-summary proceedings should Ije taken. Similarly in P. C. Matale,No. 863, decided on July 15, 1938, Abrahams C.J. set aside a sentence of' 30 N. L. R. 483.* 3 N. L. R. 1.15
432HOWARD C.J.—Punchi Mudiyansi• v. Jayasuriya.
four months’ rigorous imprisonment passed by the Magistrate on theaccused after a summary trial and directed the case to be remitted to theMagistrate to proceed to take evidence under section 155 of the CriminalProcedure Code. In that case the Court brought its revisionary powers•into operation on its own motion. There is no doubt that the powersgranted by section 347 (a), made exercisable on revision by section357 (1), allow me when interfering with the acquittal in this case to orderthat non-summary proceedings be taken. There are, moreover, excep-tional circumstances in this case rendering the exercise of such powersdesirable. I therefore quash all proceedings had by the Magistrate anddirect that the case be remitted to another Magistrate to take evidenceunder section 155 of the Criminal Procedure Code.
Proceedings quashed.