081-NLR-NLR-V-72-S.-A.-SUMATHIPALA-and-another-Appellants-and-INSPECTOR-OF-POLICE-CRIMES-Resp.pdf
37S
.WEEftAMANTJRY, J.—Sumathipala v. Inspector oj Police
1969Present: Weeramantry, J.
S. A. SUMATHIPALA and another, Appellants, and INSPECTOROF POLICE, CRIMES, Respondent
S. C. 1057-1058[6S—M. G. Colombo South, 90707/A
■ Jurisdiction—Robbery on a highway between sunset and sunrise—Not triable byMagistrate's Court—Penal Code, s. 3S0—Criminal Procedure Code, Schedule I—Legislative Enactments of Ceylon, 1933 Revised Edition—Ordinance No. 19of 1937, ss.3, 6(1), 10—Poiiers of the Commissioner thereunder—Incapacity ofthe Commissioner to alter the law.
The olfenco of robbery {Section 3SQ of tho Penal Code), when it is committedon a highway botween sunset and sunrise, is not triablo summarily by aMagistrate's Court even if the valuo of tho property in respect of which theoffonco is committed does not oxceed two hundred rupees. The only Courtother than tho Supremo Court by which tho offenco is triablo is the DistrictCourt.
The alteration effectod in the 193S edition of tho Legislative Enactmentsof Ceylon so os to give jurisdiction to a Magistrate to try a case of robberycommitted on a public highway between sunset and sunriso was not based onpre-existing law or on tho general powors given to the Commissioner byOrdinance No. 19 of 1937.
Observations on the powers of tho Commissioner.
Appeal from a judgment of tho Magistrate’s Court,'Colombo South.
Mark Fernando, for the accused-appellants.
Kumar Amarasekera, Crown Counsel, for the Attorney-General.
Cur. adv. null.
July 29, 1969. Weeramantry, J.—
Tho appellants in this case were convicted of robbery after summarytrial by a Magistrate.
Iri appeal the Magistrate’s findings of fact have not been canvassedbut the point is taken that the Magistrate had no jurisdiction to trythis case summarily. This contention is based on tho fact that the offencewas committed between sunset and sunrise on a highway, circumstanceswhich in tho submission of the appellants render tho offenco triablo•exclusively by a District Court.
Tho first schedule to the Criminal Procoduro Codo as appearing in the•current revised edition of the Legislative Enactments (tho 1956 edition)'contains, in respect of section 3S0 of the Penal Code, two separate
WEERAMANTRY, J.—Sumafhipala v. Inspector oj Police
370
•ontries in the Column headed “ Offence The first entry dealswith the offence of “ Robbery ” and tho second with the offence ofrobbery “ If committed on the highway between sunset and sunrisoI shall in this judgment refer to these offences as the '* first offenco ”and the “ second offenco ” respectively.
Against the first offence column 7 states that the punishment is rigorousimprisonment for ten years and fine, with whipping in addition, andgoes on to state further that if committed on the highway betweensunset and sunriso the punishment is rigorous imprisonment for fourteenyears. Against these entries column S states that the offences are triableby the District Court, or in cases where the value of the property doesnot exceed Rs, 200, by the -Magistrate’s Court. These entries would■appear to suggest that a Magistrate’s Court would have jurisdiction totry a case of robbery even though committed on the highway between■sunset and sunrise, if the property docs not exceed Rs. 200 in value.
The second entry under section-3S0 deals exclusivel}- and specifically _with the second offence, namely robbery committed on the highway•between sunset and sunrise, and provides in column S that the offenceds triable by the District Court alone.
The learned Magistrate has quite clearly tried this case in reliance onthe entries against the first offence under section 3$0 for he has apparentlyassumed that his Court has jurisdiction if an offenco though committedbetween sunset and sunrise on the highway, involves property worthJess than Rs. 200 in value.
The property in this case has been valued at Rs. 107 75.
The contention for the defence is that the entry to which I have justreferred appears against the first offence by error and that against thefirst offence there should not appear in column 7 any reference to offences•committed on the highway between sunset and sunrise.
A perusal of the earlier editions of the Legislative Enactments indicates"that the entry we are concerned with appears in its present form for thofirst time in the 1938 Revision of the Enactments. The earlier editionof the Enactments, namely the 1923 edition, did not contain any wordsagainst the entries relating to the first offence indicating aiiy jurisdictionin a Magistrate’s Court to try the second offence, the only Court having•such power being the District Court, by virt ue of the entry relating to thosecond offenco. In the earlier editions in column 7 against the first•offence there did not appear any words dealing with the second offence,
-and indeed it would appear to be out of place for such entries to appear■against the first offence, seeing that there is a separate set of.entriesdevoted exclusively and particularly to the second offence. The positionwas the same in all the earlier editions of the Enactments, and despitegeneral revisions of the Schedule such as that effected by OrdinanceNo. 1 of 1910, the entries in the 1923 edition under section 3S0 go all theway back to the actual enactment of the Code in 1898.
3S0
WEERAMANTRY, J.—Sumalhipata v. Inspector of Police
It is worth observing, further, that in the Penal Code as contained in.the 1923 edition of the Enactments there is an editors’ footnote againstsections 3S0-385 to the effect that they are triable by the Supreme Court,and District Court except sections 380 and 3S1 which are also triable-by a Police Court, unless under section 3S0 the offence is committed on ahighway between sunset and sunrise. An identical editors’ footnote appearsin the 1913 edition of the Enactments.2
The question then is whether when this alteration was made in the-1D3S edition there was an}' authority for effecting such alteration, whetherby virtue of statutory provision altering the law to such effect or byvirtue of any power in the Commissioner appointed for the purpose ofpreparing the revised edition.
r
Learned Crown Counsel has been unable to point to any statutoryprovision altering the law so as to give jurisdiction to a Magistrate to try acase of robbery between sunset and sunrise on a public highway; nor have Ibeen able to discover an}' such. Indeed in the schedule appearing.in the193S edition the learned Commissioner who prepared the same has madereference to statutory provisions altering the law between the earlieredition and Iris own and has with reference to section 3S0 indicated that achange had been effected by Ordinance 13 of 193S. Had there been a-statutory alteration of the Schedule giving Magistrates’ Courts jurisdiction,to try cases of robbery between sunset and sunrise, where the propertyinvolved was under Rs. 200 in value, I have no doubt such statute wouldhave been referred to in the Schedule in the same manner as the referenceto Ordinance 13 of I93S. I proceed therefore on the basis that there isno statutory provision effecting such an alteration in the law.
Indeed upon a consideration of the matters to which I have referred'it appears extremely doubtful that tho departure in this respect of the193S edition from the earlier editions was deliberate. A further factorindicative of this is the fact- that the punishment for the second offencois “ rigorous imprisonment for fourteen years, and fine, whipping in'addition. ”, whereas in the entry relating to tho second offence as appearing,against the first offence, the only punishment- stated is rigorous imprison-ment for fourteen years. If the insertion wo are considering had beenthe result of a conscious and deliberate departure from the earlier editionsit is scarcely likely that the editor would have failed to give his mind to-this discrepancy.
Whether the alteration be deliberate or accidental the next question,then is whether the authority of the Commissioner given to him byOrdinance No. 19 of 1937 was wide enough to empower him tointroduce such an alteration into tho first schedule.
Section 3 of that stat-uto gave the Commissioner very wide powers inregard to such matters as omission, rearrangement-, consolidation,incorporation of subordinate legislation, renumbering of sections,alteration of form or arrangement of sections, insertion of definitions1 vol. iv, p. 116.* vol 1, p. 122.
WEERAMANTRY, J.—Sumathipala v. Inspector of Police
381
of terms and expressions and the correction of grammatical, typographicaland other mistakes. Thero would appear however to be no provisionentitling the Commissioner to effect such an insertion into the schedule,which amounts in effect to an alteration of the pre-existing law.Furthermore, section C (1) of the same statute expressly states that thepowors conferred on the Commissioner by section 3 shall not be takento imply any powor in him to make any alteration or amendment in thematter or substance of any legislative enactment. It would appear thatthe alteration effected has precisely this effect. Indeed the same sectioncontains a procedure by which the Commissioner may cause suchalterations in the law to be made, for it entitles him if he thinks fit todraft a bill authorising such alterations or amendments for submissionto the legislature.
It seems clear therefore that the alteration effected in 1938 was onenot based on pre-existing law or on the general powers ofthe Commissioner.
It is urged on behalf of the Crown that the alteration is rendered validby section 10 of the Ordinance which provides that upon the passing of aresolution in the State Council authorising him to do so the Governormay by proclamation order that the Revised Edition shall come intoforce from such date as he may think fit, and also by the provision thatfrom the date appointed in such proclamation the Revised Edition shallbe deemed to be and shall be without any question whatsoever in allCourts of Justice and for all purposes whatsoever the sole and only properstatute book of Ceylon in respect of the enactments therein contained.The sub-section goes on to state that the revised edition shall besubstituted for previous editions of the Enactments.
It seems clear however that the provision that the Revised Editionshall be substituted for previous editions can only be given effect to inrespect of such revisions incorporated therein as have been legallyeffected. It would be contrary to principle to extend it so far as to givevalidity to an alteration made in excess of the powers conferred on theCommissioner, and, moreover, such a view is clearly negatived by sucha provision as that contained in Section 6 (1).
The requirement that the Revised Edition shall without any questionbo deemed to be the sole and only proper statute book does not take thematter any further in respect of revisions contained therein which areunauthorised by law. Further, the provision that the Governor may byproclamation order that the Revised Edition shall come into force fromsuch date as he may deem fit does not in any M ay give legislative approvalto unauthorised alterations in the revised edition, but is aimed rather atenabling the Governor to fix a date on which the Revised Edition shouldcome into operation. What comes into operation, however, is onlythe revised edition in so far as it contains law made by the legislatureor as revised within the powers given to the Commissioner.
3S2
Nandiaa Silva v. Unambuwa
The insertion in column 7, against the first oiTcnce, of an indicationthat the second offence, namely robbery committed on a highway betweensunset and sunrise, is triable by a Magistrate's Court if the property docsnot exceed Rs. 200 in value, is therefore one for which there was noauthority in law, and for the reasons I have stated, I uphold learnedCounsel’s contention to tin’s effect.
It follows that where a robbery is committed on a highway betweensunset and sunrise the 021]v Court other than the Supreme Court bywhich the offence is triable is the District Court.
The trial had before tho learned 'Magistrate being therefore invalid,I quash the convictions and direct a retrial of the accused in accordance-with law. The fresh proccc.lings will be had before another Magistrate.
Conviction quashed.