042-NLR-NLR-V-10-SILVA-v.-ANDRIS.pdf
( 203 )
• 1907.June 14.
P. C*, Matara, 22,467.
Mischief—Kflliiig a cow—Jurisdiction of Police Court—Ceylon Penal Codetss. 411 and 412.
The offence of mischief by killing a cow is punishable undersection 412 of the Penal Code and is not triable summarily by aPolice Court. Banda v. Somalia2 referred to.
T
HE accused was charged with mischief under section 411 of thePenalCode, in that he killed a cow worth Rs. 28, and was
convicted and fined Rs. 50. He appealed.
H. Prinsf for him.—The offence of mischief by killing a cow ispunishable under section 412 and not 411 of the Penal Code; andthe Police Magistrate has no power to summarily try the charge.
He fcited P. C., Panadure, 25,1653. The Magistrate should havetaken non-sujnmary proceedings and committed the accused toDistinct Court.
Uvr. a’fir. vtdL
1 S. C. Min., September 15, 1898..3 (1892) 1 S. C. B. 26.
3 8. C. Min.% June 1907.
Present: Mr. Justice Middleton.SILVA v. ANDRIS.
( 204 )
1907.
June 14.
I4th June, 1907. Middleton J.—
After giving judgment in this case dismissing the appeal, counselfor the appellant called my attention to 154—255, P. C., Panadure,25,165,* decided by my brother Grenier, in which he holds that aPolice Court has no jurisdiction under section 411 to deal with a caseof committing mischief by killing a cow. Thi6 point was not takenat the argument before me, nor that the Magistrate had dealt withthe accused under section 409 for simple mischief, which he appearsto have done. My attention was subsequently called by Mr. A. St.V. Jayewardene as amicus curies to the case of Banda v. Somalia,2in which Burnside C.J. held that in the case of a buffalo the 412thsection, giving jurisdiction to the District Court and Supreme Courtwith regard to particular animals, did not limit the general jurisdic-tion given by the 411th section in respect of such animals, and thatthe two sections would confer concurrent jurisdiction in respect ofmischief to the same animal. This judgment was based, as theChief Justice said, on the rule of construction that when a statuteby clear words confers jurisdiction in any particular matter, thefact that further and other jurisdiction is also afterwards conferredcannot be construed to oust the other. This principle, however,has more particular reference to the ouster of the jurisdiction of asuperior Court (Maxwell, p. 178, 1896 edition) by new statutoryenactment. The sections here were contemporaneous. In thepresent case the cow killed was an animal of the value of upwards ofBs. 10, and section 411 would be more intelligible if the words “ andless than Bs. 50 ” were added after thb words “ Bs. 10 ” and theword “ upwords ” deleted. In Hari Mandl'e v. Jafar* the Court,consisting of Beverley and Norris JJ., declined ,to follow4 a judgmentof Scotland C.J. at the Madras sessions in 1864, but unreported, inwhich he was reputed to have held that a calf does not come withinthe term “ bull, cow, or ox They accordingly held that section429, which is similar in its wording to our section 412, specifies themore valuable of the domestic animals without any regard to age,but in respect of other kinds of animals not so specified the sectionwould not apply unless the particular animal in question was shownto be of the value of Bs. 50 or upwards. This perhaps was the trueintention of the Legislature of Ceylon, which has therefore de-prived a Magistrate of jurisdiction (see schedule 1 of the CriminalProcedure Code, page 162) in the case of the animals specified insection 412. As my order of dismissal has not passed the seal of the•Court, I take the opportunity of withdrawing it. I must, therefore,quash the conviction in this case and direct the Magistrate to takenon-summary proceedings in the usual course.
Conviction quashed* i
i S. C. Min., June 5, 19072 (1892) 1 S. C. R. 26;
* (1895) 1. L. R. 22 Col. 457.