052-NLR-NLR-V-17-SAMUEL-v.-BRITO-et-al.pdf
( )1913.
♦
Frffaent: Pereira J.
SAMUEL v. BRITO et al.
706 arid 707—P. C. Negombo, 20,057.
Unlawful assembly being armed with deadly weapons—Summary trial—Magistrate should not charge accused with a lesser offence whenevidence discloses an offence beyond his jurisdiction—Security forgood behaviour—Criminal Procedure Code,80.
Where in the case of a charge of being a member of an unlawfulassembly it was proved to the satisfaction of the Magistrate thatthe. accused were armed with deadly weapons, it was not open tothe Magistrate to overlook this fact and frame a 'charge undersection 140 of the Penal Code and try the accused summarily.Similarly, when in the case of a charge of criminal intimidation, itwas proved that the threat was to cause grievous hurt to thecomplainant, it was not competent to the Magistrate to try theaccused summarily for the act penalized in the earlier part of section486 of the Penal Code.
An order to give security for good behaviour could be madeunder section 80 of the Criminal Procedure Code, and no order forsecurity for any purpose whatever could be made under thatsection unless it was preceded by an order passing sentence on theaccused.
fJpHE facts appear sufficiently from the judgment.
H. A. Jayewardene, for accused, appellants.—The accused erecharged with being members of an unlawful assembly. The evidenceclearly shows that they were armed with deadly weapons. * Theoffence was therefore one beyond the jurisdiction of the Magistrate.
( 159 )
He should not have assumed-’ jurisdiction-by ignoring, a-portion ofthe evidence. Sineris v. James, 1 Nagamma v. Themis 8inno *The charge should have been under section 141 of- the Penal Code.
The order to give security to be of good behaviour is wrong. Theaccused were not called upon to show cause against the .order. Ifthe order is -one -under section -60 of the' Criminal Procedure Code,there is no sentence in this case. Without passing a sentence anorder should not be made under section 80.
1918.
Samuel'
Brtto
H. J. G. Pereira, for the respondent’.—The accused was notconvicted of being a member of an unlawful assembly. The con-victim is for criminal ties]
Cur. adv. vult
October 3, 1913. Pbreira, J.—
In this case objection has been taken and strenuously pressed bythe appellants' counsel that the Magistrate has assumed jurisdictionto toy the accused on -at least the first charge framed by overlookinga material fact accepted by himself in his judgment as fully establish-ed by the evidence, the fact being that the accused were armedwith a revolver and a gun. There is no question that this fact wasaccepted by the Magistrate as proved, because the fact is set forthin the conviction of the acoused for criminal trespass. This beingso, it was not open to the Magistrate to ignore the fact and frame acharge under section 140 of the Penal’ Code in order to give himselfjurisdiction to try the accused. At the time that the Magistrateframed the charge there were presumably facts established to hissatisfaction indicating a prims facte case against the acoused ofunlawful assembly, and, inasmuch as the evidence also establishedthe fact that the accused were armed with a revolver and a gun,the unlawful assembly that the accused were guilty of was anoffence that felL under section 141 of the Penal Code—an offencebeyond the summary jurisdiction of the Magistrate, and not undersection 140; and it was a gross irregularity for the Magistrate toframe a charge under section 140 and try the accused thereonsummarily. The fact that the accused were eventually acquittedon this charge makes no difference. They were on their .trial on itfor what no doubt must have been regarded as the principal of theoffences of those with which they were charged.
The same remarks apply to the third charge, although counsel forthe accused has not alluded to it. That is a charge of criminalintimidation under section 486 of the Penal Code, but the threatdeposed to is a threat to shoot the complainant Samuel with arevolver. That being so, the offence, if any, was an offence underthe latter part of section 486 of the Penal Code, whichi also was anoffence beyond the summary jurisdiction of the .Magistrate.
* {1911) 1 C. A. O. 66.
1 {1901) 6 N. L. R, 93.
( 160 )
1918.
Phbbxba J.,
Samuel v.Brito
}
The proceedings are irregular in other respects also The Magis-.trate has passed no sentence on the accused. He has ordered theaccused to give security for good behaviour under, I presume,section 80 of the Criminal Procedure Code. In the first place, theorder under that section should be one for security to keep the peaceand not for good behaviour, as under section 82. In the next place,an order for security under section 80 can only be made at the timeof (not for) passing sentence.
The section presupposes the passing of a sentence to pave theway for an order for security.
This Court has held that an order such as that appealed from isnot a final order, and is therefore not an order from which an appeallies. (See Colantaivalu v. Somasundram.1)
I therefore deal with the case in revision, and for ..the reasonsgiven above quash the proceedings since the filing of his plaint bythe complainant, and remit the case for non-summary proceedings.
Proceedings quashed.
122.