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On appeal, Bawa appeared for him, and Dumbleton, G.C., forrespondent.
The Supreme Court quashed the proceedings and sent the caseback to be investigated as a non-summary case.
19th June, 1895. Bonseb, C.J.—
The proceedings in this case should, in my opinion, be quashed,and the case sent back to be dealt with according to law.
The accused was charged under section 392 of the Penal Codewith breach of trust as a public servant. He was brought upbefore Mr. W. H. Moor, the Acting Police Magistrate of Colombo,on a warrant on this charge. The charge was read and explainedto him, and then the Magistrate proceeded to deal with the charge.Now, that charge was one which the Magistrate had no power totry. He could only deal with it under chapter XVI. of the CriminalProcedure Code, which lays down the procedure in such cases.He has to take and record the evidence for the prosecution withthe view of ascertaining whether there is such a primd facie casemade out against the accused as would justify him in committingthe case for trial before a superior Court. He is, therefore, exercis-ing a strictly limited function. It is not his dnty to determinethe guilt or innocence of the accused. That is not in issue inproceedings under chapter XVI. of the Criminal Procedure Code.And we know by experience that proceedings before a Magistrate,as held under that chapter, are conducted in a very differentway from proceedings held before him on the trial of an offence.In the latter case the accused is on his trial, and he or hiscounsel cross-examines the witnesses for the prosecution with aview to establishing his innocence. In the former case, theaccused and his counsel, if well advised, content themselves withwatching the case to see that no improper evidence is recorded ;but, if they are wise, they do not endeavour to break downthe evidence of the witnesses for the prosecution unless their caseiB a very clear one.
In the present case, the accused was brought up on the 3rd ofJune, and charged with an offence under section 392, and tfceMagistrate proceeded to record evidence under chapter XVI.He pleaded not guilty to this charge under section 392, and thecase was adjourned to the 5th. On the 5th the witnesses forthe prosecution are all called, and, at the conclusion of the pro-ceedings of that day, the Magistrate records that the accusedis charged under section 391 of the Penal Code, and thatthe accused denies the charge. Now, section 391 is a section
Vot,. TO
1896.June 19.
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1896. which deals with the offence of criminal breach of trust by aJune 19.or servant, and that is an offence over which a Police Court
Bonsbb, c.J. has concurrent jurisdiction with District Courts and the SupremeCourt. No notice, however, appears to have been given to theaccused that the Magistrate was going to deal with the casesummarily, and no fresh evidence was called ; but the Magistrate,after hearing some remarks from the defendant’s counsel, forth-with convicts the defendant, not of the offence with which he wasoriginally charged, but of a new offence. The proceedings werethus suddenly, at their conclusion, changed from an inquiry as towhether there was a prima facie case that the accused had beenguilty of one offence into a trial of the guilt or innocence of theaccused on an entirely fresh charge of another offence.
It is said that the Magistrate acted under section 226 of the Codeas amended by Ordinance No. 22 of 1890. Of conrse, if the Codesays it may be done,—although the result of such a course wouldbe exceedingly unfair to the accused,—we are bound to obey thelaw. But in my opinion section 226 does not justify what wasdone in the present case. That section provides that a Magistrate“ may convict an accused of any offence over which a Police“ Court has summary jurisdiction, which, from the facts admitted“ or proved, he appears to have committed, whatever may be the“ nature of the complaint or information.” My opinion is thatthis section refers to cases where the Police Magistrate is tryinga case over which he has jurisdiction, and not to cases where heis acting not as Judge, but as an inquirer ; and I am confirmed inthis view by the heading of the chapter. That section is containedin chapter XIX., which is headed, “ The trial of cases where a“ Police Court has power to try summarily.” That heading showsthat the chapter is dealing with trials. Section 226 imports thatwhen a Judge is trying a case, and finds that the charge was notcorrectly framed, according to the facts which appear in evidencebefore him, but that some other offence over which he hasjurisdiction is proved, he may convict of that offence.
It will be noticed that section 226 speaks of facts proved. Now,I do not think that facts which appear in the depositions ofwitnesses taken, not for the purpose of a trial, but for the purposeof an inquiry into the prima facie guilt of an accused, can be saidto be proved for the purpose of a conviction. The proper coursefor a Magistrate to adopt in such a case would be to stay proceed-ings on the inquiry, frame a fresh charge, and try the case (I wasabout to say de novo, but as there was no trial these words wouldnot be appropriate), giving the accused notice that be was now tobe put his trial, and affording him time to prepare his defence,
—such time as would be sufficient,—because the accused is notthere to make his defence, bat to have the question decidedwhether there is a prima fade case made out against him—forthat purpose, and no other.
For these reasons the conviction in this case is quashed, and theaccused remanded to the Police Court to be dealt with accordingto law.