Silva v. Karonchihamy
1972Present: Deheragoda, J.SIMON SILVA, Appellant, and KARONCHIHAMY, RespondentS. G. 467/71—M. C. Matara, 4S845Criminal procedure—Magistrate's Court—Trial of indictable offence with offencestriable summarily—Failure to assume jurisdiction under s. 752(3) of CriminalProcedure Code—Illegality—Criminal Procedure Code,as. 152 (3), 180 (7), 425—Penal Code, ss. 368 (b), 433, 486,
* (1948) 50 N. L. B. 310-
(1937) A. 1. B. Rangoon 67,
DEHERAGODA, J.—Silva v. Karonchihamy
Where an accused person is charged in a Magistrate’s Court on two or merecounts and, although one of the counts relates to an indictabl > offence, theMagistrate goos through the trial without “ assuming jurisdiction ” undersoction 152 (3) of the Criminal Procedure Code, the whole of such proceedingsarc invalidated. In such a case the provisions of section 425 of tho Codo are notapplicable.
Joseph v. Wootler (72 N. L. R. 213) not followed.
Appeal from a judgment of the Magistrate’s Court, Matara.
D. Rajapaksc, for the accused-appellant.
Malcolm Perera, with Clarence de Silva and John Eitto, for thecomplainant-respondent.
June 2, 1972. Deheraooda, J.-*-
Learned counsel for the complainant-respondent quite properly broughtto my notice that Count 3 in the charge is not triable summarily by aMagistrate, and that the learned Magistrate has not “ assumed jurisdic-tion ” under section 152 (3) of the Criminal Procedure Code in respect ofthis count. Count 3 reads as follows :—
“ That at the same time and place and in the course of the same trans-action the accused did commit criminal intimidation to the complainantby threatening to kill the complainant with intent to cause alarm to herand that the accused did thereby commit an offence punishable undersection 486 of the Ceylon Penal Code. ”
In Counts 1 and 2 the accused is charged with offences punishable undersections 433 and 368 (b) respectively of the Ceylon Penal Code which aretriable summarily by a Magistrate. The learned Magistrate, after trial,
' convicted the accused on all three counts and sentenced him to threemonths’ imprisonment on each count, the sentences to ran concurrently.
The question whether, when there are two or more counts in a trial in aMagistrate’s Court and one of them is not triable by a Magistrate and theMagistrate goes through'the trial without “assuming jurisdiction’’under section 152 (3) of the Criminal Procedure Code, the whole of suchproceedings are invalidated has been considered in three reported cases,namely, Ramasamy v. Gunaratne1 (72 N. L. R. 187), Joseph v. Wootler 8(72 N. L. R. 213), and William v. Inspector of Police, Mirigama3 (72N. L. R. 406).
In the first of these cases Pandita-Gunawardene, J., considered thequestion whether section 425 of the Criminal Procedure Code could beavailed of to regularise such proceedings. He holds the view that suchfailure on the part of the Magistrate to act in terms of section 152 (3) ofthe Criminal Procedure Code is an illegality and not an irregularity,which only is curable under section 425 of the Criminal Procedure Code. 1
1 (1908) 72 N. L. It. 187.* (1909) 72 N. L. R. 213.
(196D 72 N. L. R. 400.
DEHERAQODA, J.—SUva v. RaronchiKamy
In the second of these cases de Kretser, J., disagrees with this view.He relies Btrongly on the Full Bench case of Madar Lebbe v. Kiri Banda1(18 N. L. R. 376) which held that there is no objection to a Magistrateapplying section 152 (3) to a case where the accused is charged with severaloffences, some of which are triable by the Magistrate’s Court and othersnot, provided he inflicts no higher punishment in respect of the loweroffences than he has in his ordinary jurisdiction to impose. This doesnot support the proposition that a Magistrate can without “ assumingjurisdiction ” under section 152 (3) of Ike Criminal Procedure Code try at onetrial an accused on a charge containing a count, which is not summarilytriable by him, together with other counts which are summarily triable.De Kretser, J., appears to have taken the view that there is no objectionto following such a procedure so long as the punishment imposed inrespect of the lower offences is within the ordinary jurisdiction of theMagistrate. His reason for holding such a view is that the offenceswhich are summarily triable are separable from the offences for the trialof which a Magistrate has to “ assume jurisdiction ” under section152 (3) of the Criminal Procedure Code. In the third of these casesWijayatilake, J., follows the judgment of Pandita-Gunawardene, J., anddoes not agree with de Kretser, J. Referring to the objection taken bylearned counsel for the appellant in that case, Wijayatilake, J., in 72N. L. R. at page 408 (supra) states as follows :—
“In my opinion this is a substantial objection. The mere factthat the accused was acquitted under this particular count is of noconsequence if the proceedings in Court do not constitute a ' trial ’within the meaning of the Criminal Procedure Code. ”
He is of the view that the trials in respect of the five counts in that casewere not severable. He goes on to say:
“It is one trial and the Magistrate has purported to so recordthe evidence in respect of all the counts. If the Magistrate had nojurisdiction to do so in respect of count 1 and he proceeded to recordevidence at this trial clearly he was acting illegally. I do not thinksuch an illegality can be cured by resorting to section 425 of theCriminal Procedure Code. ” I
I might mention at this stage that de Kretser, J., in the judgmentreported in 72 N. L. R. at page 213 (supra) does not consider thequestion whether a situation of this kind is curable under section 425 ofthe Criminal Procedure Code. Wijayatilake, J., agrees with Pandita-Gunawardene, J., that it is not possible to separate an illegal trial from thetrial on the counts triable by a Magistrate where there has been a joinderof charges under section 180 (1) of the Criminal Procedure Code, and thatan illegality of this nature is not curable under section 425 of the CriminalProcedure Code. He does not see how the principle set out by Ennis, J.,in the case of The King v. Jayasingha * (18 N. L. R. 374) which has beenreferred to by de Kretser, J., in his judgment could salvage that case, theproceedings at that trial being illegal ab initio. He concludes that if it
» (1915) 18 N. L. B. 376.(1915) 18 N. L. B. 374-
Thaatkaketr v. Jayaatkera
itswas an illegality or irregularity in regard to the sentences, the provisionof section 425 of the Criminal Procedure Code could have been invoked ;but it cannot be so done where there has been no trial as the Magistratehad no jurisdiction.
The impact on the accused of following such a procedure is that he hashad to fight a battle on two fronts at one and the same time, namely, inrespect of offences which are not considered serious enough to warrant anindictment and that in respect of which under the normal rules ofprocedure he iB entitled to the benefit of a non-summary inquiry. Hewould therefore be handicapped in his defence to Counts 1 and 2 as well.
1 would, therefore, prefer to follow the view taken by Wijayatilake, J.,and Pandita-Gunawardene, J., and accordingly I quash the proceedingsof this “ trial ” on the ground of the failure of the learned Magistrate to“ assume jurisdiction ” under section 152 (3) of the Criminal ProcedureCode, and set aside the conviction and sentence.
The next question that arises for consideration is whether a re-trialshould be ordered in this case. The learned Magistrate in giving reasonshas stated that the accused-appellant had admitted in partitionproceedings of the District Court that the complainant-respondent was inpossession of Lots 18, 19 and 20 depicted in the plan filed of record inthat case, and that the accused appellant who was the plaintiff in thatcase admitted it to be so. Apart from that there is the serious chargemade against the accused-appellant that he threatened to kill thecomplainant in the course of the transaction which is the subject-matterof this charge. I
I am, therefore, of the view that this case should go back for a re-trial,and I accordingly send the case back for proceedings de novo beforeanother Magistrate.
Case sent back for proceedings de novo.
SIMON SILVA, Appellant, and KARONCHIHAMY, Respondent