NEW LAW REPORTS OF CEYLON.VOLUME IV
QUEEN v. UDUMAN et al.
D. C., Kalutara, 1,068.
Criminal Procedure Code, e. 152 (3)—Summary trial of case of houee-breakingand hurt—Proper time for Police Magistrate, who is also District Judge,to exercise his Jurisdiction as to trial or inquiry—Evidence of house,breaking.
Under section 152 (3) of the Criminal Procedure Code, a PoliceMagistrate who is also a District Judge should exercise his discretion asto whether or not the accused should be tried summarily, immediatelyafter hearing the evidence of the complainant or other witness asenjoined by section 149.
It is not competent for him to take all the evidence for the prosecu-tion as a committing Magistrate, and then after remand try the case asDistrict Judge.
Offences under section 444 ought never to be tried summarily.
HE two accused in this case having been produced by thePolice Headman of Hinatiangala before Mr. Allan Beven,
Police Magistrate of Kalutara, upon a charge of house-breaking andcutting with a kris,. non-summary proceedings were commencedand three witnesses examined for the prosecution on the 27th Apriland 31st May. The complainant said:—“I was sleeping inside“ my house. I awoke hearing a sound like one boring the wall. I“ saw a breach in the wall. My lamp was burning in the room. I“ opened the back door and spoke to my brother Amala Marikar, who“ lives in the adjoining house. First accused came.up and stabbed“ at me with a kris. I held the kris and my left hand got cut.“ Second accused was also there. He snatched the kris which I“ was holding while in the grasp of the first accused. My children4—RR 19790 (12/66)
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1900.“ and wife raised an alarm. Neighbours collected. Accused ran
June 16.“ away. The headman came, made inquiries, and arrested them.
“ Nothing was missing from my house. This took place at 2 a.m.”
The medical officer (Dr. Heynsburg), who examined the com-plainant soon after he received the injuries, deposed that thecomplainant had three incised wounds in the palm and oneabrasion in the left arm, and that none of them were grievous.
After the examination of these witnesses, the Magistrate ad-journed the case for the 31st May, on which day he examined threemore witnesses and informed the accused that he would try thecase summarily, being of opinion that he could do so adequatelyunder section 152 (3) of Ordinance No. 15 of 1896. The wit-nesses already examined were then offered for cross-examination,charges framed under sections 443 and 444 of the Penal Code,and evidence heard for the defence.
The Magistrate found the accused guilty and sentenced each toeighteen months’ rigorous imprisonment.
The accused appealed.
Van Langenberg, for appellant.—Under section 152 (3) of theCriminal Procedure Code, where the Police Magistrate is also aDistrict Judge, he should exercise his discretion (as to whether ornot the accused should be tried summarily) immediately afterexamining the complainant and taking down the statement of theaccused. He has no power to exercise it after hearing the wholecase for the prosecution. On the merits, the case was not onewhich should have been dealt with by the Police Court. It shouldhave been committed for trial before a higher Court.
Bonser, C.J. (having, perused the evidence).—I think theconviction should be quashed and the case sent to the Attorney-General for such instructions as he may think proper to give.
Templer, C.C., for the Crown, stated that he had no objectionto the course suggested by his Lordship.
16th June, 1900. Bonser, C.J.—
In thi6 case the District Judge of Kalutara purported to exercisethe power given to him by section 152 of, the Criminal Proce-dure Code to try summarily an offence triable by a DistrictCourt, he being a District Judge and at the same time a PoliceMagistrate, who was investigating the charge with the view to acommitment to a higher Court. I think he was ill-advised inthe circumstances in doing this.
It appears from the evidence that the two accused had made abreach in complainant’s wall, but there is no evidence that they
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had. done anything more so as to commit the offence of house-breaking. They only got to the stage of an attempt to commithouse-breaking. The complainant was aroused by the noise,opened the door, and went out, whereupon the first accused issaid to have laid a kris to his neck and threatened to kill him.A struggle then ensued for the kris, in which the complainant’sleft hand got severely cut. The cries of the complainant and hiswife brought the neighbours to the scene, and the accused ranaway. They were, however, at once arrested by the headman andtaken before the Police Court of Kalvftara. On the 27th Aprilthe Police Magistrate took the evidence of the complainant andhis wife and the headman, and remanded tha accused on twocharges: first, under section 443 of the Penal Code, of commit-ting house-breaking by night in order to the committing of anoffence punishable by imprisonment; and second, under section 444,of committing house-breaking by night having made preparationsfor causing hurt, an offence which is punishable with fourteenyears’ rigorous imprisonment, but which is, strangely enough,made by our Code triable by a District Court. To my mind it isone. of the most serious offences of which a person can be guilty,and certainly ought never to be tried summarily. Then thecase was adjourned until the 31st of the following month,when further evidence was taken, besides that of the doctorwho described the wounds on the complainant’s hand. Hedeposed that they were not of a serious nature. The Magistratecompleted taking the evidence of all the witnesses for the prose-cution and then announced his intention of trying the casesummarily.
Even if the offence was one which he could try summarily,which it was not, it seems to me that it was too late for him toexercise the power given him by section 152. It is quite clearfrom the whole of chapter 15, in which that section occurs, thatthe Magistrate is to make up his mind whether he will trysummarily as District Judge or not after hearing evidence undersection 149. It is not competent for him to take all the evidencefor the prosecution as a committing Magistrate, and then, aftervarious remands, say suddenly, “ All this time I have not been“ acting as a committing Magistrate, but trying the case as District“ Judge.” That is what it comes to.
The conviction is quashed, and the case ordered to be submittedto the Attorney-General, as it ought to have been submitted in thefirst instance, in order that he may determine what furtherproceedings he will take, and frame such charge as he may thinkproper.
QUEEN v. UDUMAN et al