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QUEEN v. VAIYAPURI.
D. C., Colombo, 1,044.
Merchandise Marks Ordinance, No. 13 of 1888, s. 3—Offence thereunder—Election by accused to be tried before the District Court—Information byAttorney-General—Jurisdiction of District Court to entertain theinformation.
A District Court has jurisdiction to inquire into and determine intoan offence punishable under the Merchandise Marks Ordinance, section3, when the accused has elected, at the magisterial inquiry, to be triedby the District Court.
Upon such election, it is competent to the Attorney-General to exhibitan information to the District Court for the trial of the accused.
r 11HE information exhibited in the District Court of Colombo bythe Attorney-General in this case, stated that the accused hadcommitted an offence punishable under the Merchandise MarksOrdinance (No. 13 of 1888), section 3, sub-section 2, and afteralleging the particulars of the offence gave the Court to understandthat “on or about the 4th of July, 1894, on complaint being made“before the Police Court of Colombo in respect of the said offence,“and the said Vaiyapuri Pillai then being present before the said“ Court, and being informed by the said Court of his right to be“tried by the District Court of Colombo, elected to be tried by the“said District Court,” Ac.
Summons having been allowed on this information, the aecnsedappeared and submitted that the Court had no jurisdiction toentertain and inquire into the charge contained in the information,and that the Attorney-General had no power to file such aninformation.
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The learned (Acting) District Judge (Mr. Joseph Grenier) over*ruled these objections, and, after evidence heard, found the accusedguilty, and sentenced him to pay a fine of Rs. 200 and the costs ofthe prosecution as costs in the first class.
The accused appealed.
Bawa, for appellant.
Domhorst, for respondent.
Cur. adv. vult.
12th February, 1895. Brownk, J.—
A private complainant having instituted a prosecution againstthe appellant before the Police Court of Colombo for offencesunder section 3 (1) b and d of the Merchandise Marks Ordinance,13 of 1888, and the appellant having, on his appearance before thePolice Court, elected under clause 5 of the same section to be triedbefore the District Court, the Magistrate proceeded to inquire intothe complaint as a case not triable summarily, with the result thathe discharged the appellant. In appeal this Court (J S. C. R. 162)quashed the proceedings subsequent to the recorded election ofthe respondent, but of course did not indicate what furtherprocedure might thereafter be available to the complainant. TheAttorney-General subsequently filed an information in theseproceedings in the District Court, and obtained summons againstthe appellant. On his appearing thereto, and being called on toplead to the indictment, it was objected on his behalf that theCourt had no jurisdiction to entertain or inquire into the chargein the information, and that the Attorney-General had no powerto file such information in that Court.
The learned District Judge, in his very full consideration ofthese questions now raised for the first time, has pointed out thatthe Criminal Procedure Code, in sections 263-4, has contemplated >that cases shall come before a District Court only in two ways :on committal from a Police Court, or by order of transfer fromsome other Court; that section 8 of that Code gives District Courtsjurisdiction in criminal matters “ subject to the provisions of theCode”; and that section 13 provides that a District Court shallnot take cognizance of any offence as a court of original criminaljurisdiction unless there has been such a committal or transfer;and that chapter 20 has empowered the Attorney-General toexhibit original information at his pleasure in the Supreme Courtonly, and in the Supreme and District Courts after the dischargeof an accused by a Police Court under the provisions of chapter 16,when he is of opinion that such accused person should not havebeen discharged, and only thereafter. He further remarked that
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“ the provisions in Ordinance No. 13 of 1883, section 3 (5), related“ to a person charged, and directed he should be put to his election"before the charge is gone into,” and said he was inclined toconsider that section 226 [i. e., section 219 (2) of Ordinance No. 22of 1890] should be read therewith or thereinto, and that on theaccused electing as here to be tried by the District Court, theMagistrate should record the necessary preliminary evidencewhereon the District Court could subsequently proceed, andcommit him thereto. In view, however, of the order of this Courtpreviously made, holding that the Police Magistrate was functusofficio as soon as election was made by the accused, he assumed hehad jurisdiction in respect of the information filed, and he triedthe accused and convicted and sentenced him.
This is but a very brief precis of the views expressed with fullcomment and reasoning in some 24 pages of the record. I do not,however, recite them more fully, for the reason that I would affirmthat the District Court has jurisdiction, and the Attorney-Generalin such a case as the present has a right to present his information,for a reason which does not appear to have been considered inthe previous argument. That is, that the District Courts are notdependent for their criminal jurisdiction solely upon the enact-ment of section 8 of the Criminal Procedure Code, for that, sixyears after such power was given to it, section 66 of the CourtsOrdinance, in (like section 8 of the Code) giving a District Courtfull power and authority to hear, tryand determine all prosecutionsand charges instituted and preferred before it against any personfor any crime committed within its district, did not limit thatpower and authority to be “ subject to the provisions of this Code ”as that section 8 had done. Section 8 enacted, “ shall have, as"heretofore, and subject to the provisions of this Code, cognizance“ of and full power to hear, try, and determine.” The provisionsof the Code were to rule the District Court in everything in itscognizance of and its power to try and determine all prosecutions.Section 66 says nothing of cognizance or subjection to theCriminal Procedure Code, but “ shall have full power and autho-rity to hear and determine,” and makes only a limitation
in regard to the procedure inside the Court itself that it shall be
“ in manner in the Criminal Procedure Codeprovided.”
The jurisdiction so conferred is not fettered by the provisions ofsection 13 of the Criminal Procedure Code, and a prosecution ofthe character of the present will be permissible so long as it isconducted as prescribed by chapter 21 (omitting sections 263-4,which are inapplicable'. This safeguard however exists, that theAttorney-General or his nominee shall conduct the prosecution,
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wherein I consider is included the framing of the charge orinformation or indictment, for I do not see that under section 261it would be competent for any private person to appear and do so.
Section 4 of the Criminal Procedure Code requires that alloffences under any such enactment as the Merchandise MarksOrdinance shall be inquired into and tried according to theprovisions of that Code, subject to any enactment for the timebeing in force regulating the manner or place of inquiry into ortrying such offence. And now that the ruling of this Court hasmade it clear that, as soon as the accused’s election of the DistrictCourt removes the prosecution instantly thither, this Erection Iread as meaning in such a matter as the present that the offenceis to be inquired into and tried under the provisions of chapter21 only, it being (with the supplementary chapter 24) the onlyprovisions relating to trials by a District Court.
I therefore hold that the District Court had jurisdiction toinquire into and determine the matter of this prosecution.
I further hold that the accused appellant was rightly convicted.I give the same credence as the Court below has given to theevidence of the witnesses, and I do not see that the certificate,which bears the seal of the Colonial Secretary’s Office, and is signed“ True copy : H. W. Green, for Colonial Secretary,” was improperlyreceived in evidence under the provisions of section 27 of Ordi-nance No. 14 of 1888. I presume, until the contrary is shown, thatthis Assistant to the Colonial Secretary so signed by some authori-zation as section 2 of that Ordinance contemplates.
QUEEN v. VAIYAPURI