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• 1904.November 8.
PTJNCHIRALA v. DON COBNELIS.
P. C., Badulla, 6,219.
Criminal Procedure Code, ts.. 125, 149, 152 (8)—Offence triable by DistrictCourt—Summary trial by Police Magistrate, being also District Judge—Competency of Magistrate, after recording evidence of complainant, to goon with case as District Judge.
Where a Police Magistrate, in a case of grievous hurt, recorded theevidence of the complainant and then, deeming it advisable-■ to disposeof the case summarily in his capacity of District Judge, heard, the • otherwitnesses for the prosecution and determined the case,—
Held, that it was not competent for the Magistrate to do so.
He should first state his reasons for the opinion that the offence maybe properly tried summarily, and then should re-call the complainantand hear the witnesses afresh ab initio.
N this case the Police Magistrate, after hearing the com-plainant, recorded as follows: —
“ Though the complaint includes the charge of grievous hurt,I think it advisable to dispose of the case summarily in mycapacity of District Judge.”
He then heard the other witnesses. for the prosecution/ anddischarged the second and third accused. He framed chargesagainst the first accused for offences under sections 316 and 314heard the evidence for the defence, and convicted the firstaccused.
The first accused appealed.
Bawa (with him E. W. Jayawardene), for accused appellant.
8th November, 1904. Layabd, C.J.—
In this case the District Judge of Badulla purported to exercisethe power given to him by section 125 of the Criminal ProcedureCode to try summarily an offence triable by the District Court,he being a District 'Judge and at thq, same time a Police Magistratewho was investigating the charge with a view to commitment toa higher Court. Bonser, C.J., in the case of Queen v. Uduman(4 N. L. R. 3), points out that, even if the offence was one whicha Police Magistrate might try summarily, it was too late for himafter hearing evidence to exercise the power given him by section152. He adds that from the whole of Chapter XV. it is quite clearthat the Magistrate is to make up his mind whether he will trysummarily as District Judge or not, after hearing evidence under
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section 149. Following that decision, it appears to me it was not 1904*competent for the Magistrate after taking evidence in full of the ^°vern^er 8-witness Punchirala (complainant) as committing Magistrate to then Latabd.C.J.turn round and say, “ I will treat the evidence as if I had recordedit in my capacity as District Judge.” It might be differentif he had recalled the complainant after he had made up hismind to try the case as District Judge.
The conviction is quashed and the case ordered to be submittedto the Attorney-General in order that he may determine whatfurther proceedings, if any, he will direct to be taken.
I would invite the attention of the Magistrate* to the decisionof the Collective Court in the case of Silva v. Silva (7 N. L. R.
182), which is binding on him as well as on me. ' This Courthas there distinctly held that it is the duty of the Magistrate,when purporting to act under section 152 (3) of the CriminalProcedure Code, to state his reasons for forming the opinion thatthe offence may be properly tried summarily. The Magistratehas in this case failed to conform with that ruling.
PUNCHIRALA v. DON CORNELIS