014-NLR-NLR-V-37-SILVA-v.-KELANITISSA.pdf
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KOCH A.J.—Silva v. Kelanitissa.
1935Present: Koch A.J.
.. SILVA v. KELANITISSA.
123—P. C. Kandy, 46,248.
Criminal Procedure—Summary trial of non -summary offence—Magistrateassuming jurisdiction as District Judge—Failure to record opinion thatthe case mpy be tried summarily—No presumption—Criminal ProcedureCode, s. 152 (3).
Where a Police Magistrate, who is also District Judge, tries summarilya non-summary offence it cannot be presumed, in the absence of a recordto that effect, that he proceeded under section 152 (3) of the CriminalProcedure Code.
It is the duty of the Magistrate not only to record his opinion but alsoto state his reasons for the opinion that the offence may properly betried summarily.
A
PPEAL by the complainant with the sanction of the Solicitor-General.
B. Wickramanayake C.C. (with him Kariapper, Acting C.C.) forcomplainant-appellant.
L. A. Rajapakse, for accused-respondent.
.June 5, 1935. Koch A.J.—
The accused-respondent was charged on three counts and acquittedby the Police Magistrate. An appeal has been preferred against theacquittal by the complainant, R. O. de Silva, District Inspector of Police,Kandy, with the sanction of the Solicitor-General. The appeal is basedboth on the facts and the law.
I advisedly refrain from making any comments on the merits in viewof the order I propose to make.
On the law it is submitted that two at least of the three counts werenot triable by a Police Court. The counts respectively were, to putthem briefly:(1) that the respondent did commit theft of three tea
coupons numbered S. C. 2387, S. G. 2393, and S. C. 2413, belonging tothree different persons, and rendered himself punishable under section368 of the Ceylon Penal Code, (2) that he did commit criminal breachof trust in respect of these three coupons and rendered himself punishableunder section 392 of the Ceylon Penal Code, and (3) that he dishonestlymisappropriated the proceeds of sales of two of these coupons, viz.,S. C. 2413 and S. C. 2393, and rendered himself punishable undersection 386 of the Ceylon Penal Code.
The accused is an assistant Postmaster, and the evidence led wasdirected to show from the outset that the alleged offences were committedby him while acting in that capacity. Also at an early stage of a longtrial evidence was led to prove that coupon S. C. 2387 was worth Rs. 39.30,coupon S. C. 2393 Rs. 58.80, and coupon S. C. 2413 Rs. 190. Theaggregate value amounting to Rs. 288.10.
Now the offence of theft punishable under section 368 of the PenalCode is not triable by a Police Court when the value of the propertystolen exceeds 100 rupees. The offence punishable under section 392
KOCH A.J.—Silva v. Kelanitissa.
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is only triable by a District Court, while the offence punishable undersection 386 is triable both by the Police Court and the District Court.It is clear therefore that the Police Court had no jurisdiction to try theoffences set out in the first and second counts.
Mr. Rajapakse, who appeared for the accused-respondent, stronglypressed on me the hardship that his client would undergo if the acquittalis set aside and the case remitted to the Police Court for the taking ofnon-summary proceedings. He argued that his client would haveto defend himself over again for no fault of his own and he will have lostthe benefit of the expense he had incurred in retaining a proctor to defendhim at the trial which resulted in his acquittal. That the respondentwill suffer this loss there can be no doubt, but some portion of the blamedoes lie on the respondent himself. He was'defended by counsel rightthrough a lengthy trial and at no stage did he point out to the Magistratethat the proceedings which were being held were irregular. It issurprising that neither the Inspector (complainant) nor the Magistratenor defending counsel noticed the irregularity, and it is regrettablethat so much money, time, and labour have been expended to no purpose.Perhaps the excuse is that all three concentrated so much on the meritsof a troublesome and involved case that the point of jurisdiction quiteescaped them. There is something in this, but unfortunately it is nojustification and cannot assist the respondent.
Mr. Rajapakse further pressed the point on me that as the Magistratewas also an Additional District Judge, it should be presumed that hetried the case under section 152 (3) of the Criminal Procedure Code,and.rightly so, he argued, as there was a general presumption in favourof the regularity of proceedings in a court of law.
The argument, in my opinion, is not sound. This section specificallyrequires that the Magistrate, having regard to all the circumstances ofthe case, must be of opinion that such offence may be tried summarily.The Magistrate’s opinion, it appears to me, is a condition precedent tothe assumption of the jurisdiction contemplated by that section. It isnecessary therefore that that opinion must be recorded.
My view is supported by the judgment of the Full Bench in Silva v. Silva
I shall quote for brevity the words of de Sampayo J. only on the point: —
“ It is not enough for the Police Magistrate to form the opinion that theoffence may be tried summarily by him, but he must record the reasonsfor his opinion.” It was further held that the opinion when recordedwas itself subject to revision by this Court.
The necessity for setting out the reasons becomes therefore apparentfor this Court is entitled to know what they are when called upon tointerfere. This necessity has been consistently insisted on, as shown inP. C. Tangalla, No. 12,994 (Koch’s Rep. 18) Darihia v. Donhamy", Naide v.Rataranhamyz, Rex v. Rodrigo *, P. C. Kegalia,' 20,736", Punchirala v.Cornells “, and Parupathy v. LevvaiT.
Sir Forrest Garvin in a recent case (Sheddon v. Ago Singho *) approvedof and followed the decision of Silva v. Silva (Supra). He set aside the
* 7 N. L. R. 182.* 1 C. W. R. 6.
2 Br. 230. .6 8 N. L. R. 58.
Lean 95.7 2 S. C. D. 34.
4 Bat. Notes of cases (i2.8 14 Cey. Late Rcc. 42.
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Sabavathy v. Yoosoof.
conviction and remitted the case to the Police Magistrate with directionsthat non-summary proceedings should be taken with a view to com-mittal to a higher tribunal. The Magistrate in that case had recordedhis opinion, but Sir Forrest Garvin did not see eye to eye with him,being of opinion that charges of cheating by personation and forgerywere too grave to be disposed of in a summary manner.
The offence disclosed in the second count in the case before me is of avery serious nature. It involves a liability to imprisonment for a periodof ten years. The evidence of the two witnesses H. B. Abeykoon andH. B. Nikatenne, if true, also shows that the respondent was a party toa forgery committed in respect of two of these coupons. These were-the earliest witnesses called, and had the Magistrate recorded that inhis opinion the case against the respondent could summarily be tried byhim acting under the power allowed him in section 152 (3), I shouldhave followed the view expressed by Sir Forrest Garvin and acted asthe latter did.
The cases of Heyzer v. James Silva1, Mohamadu v. Aponsu", Abanchi-hamy v. Peterand Kalinguhamy v. Porolis Appu * that were also referredto in the argument, do not exactly touch the point and I see no necessityto deal with them.
For the reasons expressed I set aside the verdict of acquittal andremit the case to the Police Magistrate for the taking of non-summaryproceedings against the accused.
Case remitted.