047-NLR-NLR-V-72-RAMASAMY-et-al.-Appellants-and-GUNARATNE-Respondent.pdf
llaitinxamy v. Gunarn'.nc
1S7
1968Present: Pandlta-Gunawardene, J.RAMASAMY el al., Appellants, and GUNARATNE, RespondentS.G. 521-520/68—M. C. Gampola, 8978
Criminal procedure—Magistrate'# Court—Joinder oj chargea —Trial of indictableoffence together with offence# triable .summarily—Omission to assumejurisdiction under s. 152 (J) of Criminal Procedure Code.—Illegality—CriminalProcedure Code, ss 152 (3), ISO (I), 425.
Where a number of offences alleged to have been committed in the course ofone and the same transaction aro tried together summarily by a Magistrate, butone of thoso offences is an indictable offence, the joinder of the indictableoffence with the offences triable summarily vitiates the entire proceedingsab initio. In such a case, the failure of the Magistrato to assume summaryjurisdiction under section 152 (3) of the Criminal Procedure Code is anillegality which is not curable by section 425 of tho Criminal ProcedureCode.
'(1967) 71 N. L. H. 88.*(1968)71 N. L. R. 93.
»(1968) 71 N. L. R. 233 at 237.
1SS
l'ANDITA-GUXAWARDEXE, J.—llamasamy v. Gunarcitne
.ApPEAL from a judgmont of tho Magistrate’s Court, Gampola.
N.Satyendra, for the accused-appellants.
Tyrone Fernando, Crown Counsol, for the Attorney-General.
Our. adv. null.
December 1C, 1908. Pandita-Gunawaudeke, J.—
Tho appellants were charged and convicted in tho Magistrate’s Courtof Gampola on tho following counts ;—
that the}- on 10.11.67 at Black Forest Estate, Pussollawa were
members of an unlawful assombly, the common objoct of whichwas to voluntarily cause hurt to Murhu Vellaj'an of SouthDelta Group and thereby commit ted an offence punishable underSection 140 of tho Penal Code, Cap. 19 R.L.E.C.
at tho tiruo and place aforesaid and in the course of the same
transaction as sot out in Count 1 above, the accused were allarmed with deadly woapons, to wit, knivos and clubs while boingmembers of tho said unlawful assombly and thoroby committedr.n offence punishable under Section 141 of the Penal Code,Cap. 19 R.L.E.C.
that all tho accused being mombors of tho said unlawful assembly
■while being armed with deadly woapons. did use violenco in thoprosecution of tlio said common object of tho said unlawfulassembly as set out in Count 1 and thereby committed anoffence punishable under Soction 145 of tho Penal Codo, Cap. 19
R.L.E.C.
at the same transactionassot. out in Counts ] to 3 above, tho above-
named 1 to 3 accused did voluntarily causo hurt to MurhuVollavan of South Division, Delta Group with a sharp cuttinginstrument, to wit, a pruning knife and thereby committed auoffence punishable undor Soction 315 of the Penal Code, readwith Section 32 of Cap. 19 R.L.E.C.
(5.) at the time and place aforesaid and in tho course of tho samo trans-action as set out in Counts 1 and 3 above, the 4th and 5th accusoddid voluntarily causo hurt to Murhu Vollayan of South Division,Delta Group, Pussollawa, with clubs and thereby committed anoffence punishable under Soction 314 read with Section 32 ofCap. 19 R.L.E.C.
PAXDITA-GUNAWARDENE, J.—Ramasamy v. Gunaratnc
189
(6) at the time and place aforesaid and in the course of the samo trans-action as sot out in Counts 1 to 3 above, the 6th accusod didvoluntarily cause hurt to Murhu Vollayan of South Division,Delta Group, Pussellawa by kicking at the abdomen and therobycommitting an offonco punishable under Section 314 of tho PenolCode, Cap. 19 R.L.E.C.
The third count sets out an offence under Section 145 of tho Penal Code.It is an offonco triable by tho District Court and not ono in respectof which the Magistrate’s Court had jurisdiction to try. Learned Counselfor tho Appellants contends that the entire proceedings aro tainted withillegality and therefore tho convictions and sentences must bo quashed.
The facts upon which the charges were brought aro as follows:—On10th November 1967, Vellayan, the Supervisor in Black Forest Estate,accompanied by one Nagalingam, was walkingalong a road in the Estate ;they wore met by the appellants who obstructed thorn ; the appollantsattacked Vollayan ; the first appellant is said to have cut Vollayan with aknife whilst the others struck him with clubs ; ono of tho appellantskicked him ; as a result of this assualt, Vellayan sustained injuries. Theywere however not of a serious or grievous nature as would appear from thoMedico-Legal report, PI. The two knife injuries wero skin doop, ono onthe back of the left wrist and the other on the inner aspect of tho left knee.The other injuries were minor contusions and abrasions and they were onthe right and left arms.
The charges against the appollants are based on facts relating to onoincident. The joinder of the charges has boon by virtue of Section 180(1)of the Criminal Procedure Code which provides “ If in one series of actsso connected togothor as to form the same transaction more offencos thanono are committed by tho samo person he may be charged with andtried at ono trial for every such offenco, and in trials before the SupremoCourt or a District Court such charges may be included in ono and thosame indictment ". It has been urged that as Count 3 discloses an offonconot summarily triablo by tho Magistrate, the trial was bad in law and thoproceedings are ab initio vitiated. It is manifest that Count 3—thooffence of rioting—is an offence which the Magistrate had no jurisdictionto try and the trial upon that charge is illegal and is a nullity. .
The question to which I have to address myself is whether it ispermissible for me to quash the conviction and sentence on Count 3 andproceed to consider the remaining Counts which are properly triablo bythe Magistrate. Learned Counsel for the Appollants argues that that isa course not open to me. It is submitted that the facts in this caserelate to one transaction ; that charges inclusive of Count 3 are based onone incident of assault upon Vellayan ; that the joinder of the chargeshas been for the reason that tho offences were committed in the course ofone and the same transaction ; and that it ha3 been one trial on all tho
190
P A NDIT A – G UN A WAR DENE, J.—Ramasatny v. Gunaratne
chargos. It has boon said, and with much force, that tho Magistratecould not comnionco trial in thi3 caso in viow of Count 3, a count■which ho was not competent to try.
Tho Ioarnod Magistrate has apparently procecdod to try tho appellantsin tho erroneous belief that all tho offoncos woro triablo by him as Magis-trate. In tho proceedings of lltli January 196S, aftor tho ovidenco ofVollaj-an had been lod, the learned Magistrate has said " In viow of thiswitness’s evidonco, it is not nccossary to act under Section 152 (3) of thoCriminal Procedure Code. I proceed to charge tho accused and trythorn on tho powors vosted in mo as Magistrate without assumption ofjurisdiction Had tho Ioarnod Magistrato taken the trouble to roferto the first schedule to tho Criminal Procedure Codo, ho would havescon that Count 3—an offonce undor Section 145 of tho Penal Codo—isclearly ono which is not triablo by him as Magistrato. What the loarnedMagistrate should havo done was to havo adoptod the procedure laiddown in Section 152 (3) of tho Criminal Procedure Code. Section 152 (3)states “ Whore tho offence appears to bo ono triablo by a District Courtand not summarily by a Magistrate’s Court and tho Magistrato boingalso a District Judge haring jurisdiction to try tho offence is of opinionthat such offonco may properly bo tried summarily, ho may try tho samesummarily following tho proceduro laid down in Chapter XVIII and inthat caso ho shall havo jurisdiction to impose any sentence which a DistrictCourt may lawfully impose ”.
In tho case of Madar Lebbe. v Kiri Banda at at.1 it has been held—I amquoting from tho hcadnoto—“ Tliero is no objection to a Polico Magistratoapplying Section 152(3) of the Criminal Procedure Code to a caso wherean accused chargod with several offoncos, somo of which aro triablo bytho Polico Court and others aro not., provided ho inflicts no highor punish-mont than he has ordinary jurisdiction to impose ”. Tho facts of thatcaso as reported aro as follows :—tho chargos against tho accused werefor offoncos under Sections 140, 144, 146 and 439 of tho Ponal Code.Tho Magistrato procccdod to try tho accused summarily in his capacity asDistrict Judge, invoking tho provisions of Soction 152 (3) of tho CriminalProceduro Code. Soction 140 discloses an offonco which tho Magistratohad jurisdiction to try as Magistrato and the sentence imposed on thatcomm was ono oi six months’ rigorous imprisonment, which was withintho powors of the Magistrato to impose. Tho sontcnco passed lor thooffonco under Soction 144 was two yoars' rigorous imprisonment, plus afino of Rs. 2,500/- which clearly oxcocdod tho punitive jurisdiction ofa District Court, (vide Soction 14 of tho C.P.C.) whoro tho maximum finois Rs. 1,000/-. Tho sontcnco on that count was therefore variod byreducing tho fino to Rs. 1,000/-. De Sampayo, J (agreoing with WoodRonton, C.J, and Ennis, J) in tho course of his judgment (ibid, at pago 379)said “ If tho offonco is one which is triable by tho Polico Court, tho PolicoMagistrate has jurisdiction without any rcfercnco to Soction 152(3) of thoCriminal Procedure Codo, and if ho arrogates to himself highor punitive
1(1015) IS A*. L. R. 376 (Full Ranch).
fANDiTA-GUNAWARDEXE, j.—Ramasamy v. Gunaratne191
powers by purporting to act under that provision, tho infliction of anypunishment beyond tho Police Court iimit docs not by itsolf vitiato aconviction, but is in my opinion an irrogularity which may bo cured asrogards tho son ten co by tho interference of tho Supremo Court in appeal orin revision. Mr. Baiva, for tho appoilants, does not seriously contostthis point, but he strenuously arguos that whore an accused is charged intho same proceedings with several offences, some of which aro triablesummarily by the Police Court and othor aro not, Section 152(3) is notapplicable at all, and that if for tho purposo of trying tho latter offencessummarily tho Police Magistrate gives himself jurisdiction under that
Section, a conviction for all or any of tho offences is wholly bad ”
"I do not think that this reasoning is sound ”.
“In my opinion thoro is no objection to a Polico Magis-trate applying Section 152(3) to a case where several offonces of twodescriptions of gravity are concemod, provided of course lie inflicts nohigher punishment in respoct of tho lower offoncos than ho had ordinaryjurisdiction to impose ”.
Tho position in this case is that although among the offonces was onowhich the Magistrate was not empowered to try summarily a3 Magistrate,the Magistrate in the mistaken belief that thoy wore all offonces which hocould havo tried as Magistrate, proceeded to trial. It is, in my opinion,not a case of an irrogularity wliich is curable by Section 425 ofthe Criminal Procedure Code. Section 425 enacts that" Subject to theprovisions herein before contained no judgment passed by a court ofcompetent jurisdiction shall bo revorsed or altered on appeal or revisionon account—
(a) of any error, omission, or irregularity in tho complaint, summons,warrant, charge, judgment, or other proceedings before orduring trial in any inquiry or other proceedings under this Code,or
(ft)
(c)unless such error, omission, irregularity, or want has occasioned a failureof justice.”
The Magistrate’s Court was certainly not a Court of competent juris-diction in respect of Count 3, an offence under Section 145 of the PenalCode. The failure on the part of the Magistrate to act under the termsof Section 152(3) of the Criminal Procedure Code is therefor© an illegalitywhich is incurable.
Neither the researches of Counsel nor my own into this aspect of thematter has resulted in the discovery of any authority for tho propositionthat in circumstances such as are present hero, it is permissible toseparate the illegal trial of the offence under Count 3 from the trial ofthe remaining counts ; to quash the proceedings in respect of Count 3 ;and consider tho remaining summarily triable counts. It would appearthat the basic principle which militates against such a course is that the
192
TEJvNEKOON, J.—Thamecna v. Koch
trial by the Magistrate must bo troated as one trial and not as separatetrials in respocfc of soparato offences which have boen joined togothorunder Soction 180(1) as forming part of the same transaction. It wouldseem to me that the caso of Madar Lebbe v. Kiri Banda1 lays down theprocoduro to bo adopted by Magistrates in cases whore some of theoffoncos are triable summarily by a Magistrate and others are not. Insuch casos, the Magistrate is roquirod to adopt the procedure laid downin Section 152 (3) of the Criminal Procedure Code, “provided of courso hoinflicts no higher punishment in respect of the lower offences than hohad ordinary jurisdiction to impose ”.
The trial in this case has not boon in accordance with tho law and istherefore illegal. Tho convictions and sentences are horoby quashed.
Convictions quashed.