^/^PPEAL from a conviction by the Magistrate of Trincomalee.
R. L. Pereira, K.C. (with him M. Balasunderam), for the accused,appellant.
H. V. Perera, K.C. (with him G. G. Ponnambalam and V. Arulambalam),for the complainant, respondent.
Cur. adv. vult.
December 10, 1940. Howard C.J.—
This is an appeal from a judgment of the Magistrate of Trincomaleedated July 29, 1940, convicting the appellant of falsification of accountsunder section 467 of the Penal Code and sentencing him to a term of 18months’ rigorous imprisonment. Counsel for the appellant has submittedtwo grounds of appeal as follows: (1) that the case was not one thatcould properly be tried summarily by a Magistrate and (2) that thecharge was defective inasmuch as it failed to comply with the provisionsof section 179 (1) of the Criminal Procedure Code. With regard to thefirst ground an offence against section 467 of the Penal Code is nottriable summarily. The Magistrate who was also the District Judge ofTrincomalee in so trying the case purported to act under the provisionsof section 152 (3) of the Criminal Procedure Code. He has stated thatthe offence might properly be tried summarily for the following reasons : —
the facts of the case are simple, (2) no points of law are involved, (3)the nature of the offence, (4) all the, circumstances of the case, (5) it isexpedient to do so, (6) it is economical to do so. The interpretationto be given to the word “ properly ” in section 152 (3) was consideredby this Court in the case of Silva v. Silva The following passageoccurs in the judgment of Wendt J.: —
“ Assuming in any given case that a maximum term of two years’imprisonment would be sufficient punishment, the question remainswhether the interests of justice would be furthered by a summarytrial—a trial without a preliminary investigation by a committingMagistrate; without the supervision and control of the Attorney-General; necessarily without assessors to assist the Judge; and asa general rule, without the aid of Crown Counsel to conduct the prosecu-tion." All of these . advantages would attend a trial after committal,and there are many cases in which the complicated character of thefacts or the difficult questions of law involved render it desirable thatthe trying Judge should have the assistance I have indicated. It istherefore right that in forming an opinion as to the- propriety of asummary trial the Magistrate should consider all these matters, andthat his order should show he has done so.”
Middleton J. in the same case has also expressed his opinion on themeaning of the word “ properly ” in the following passage : —
“An offence which can be properly tried summarily then wouldseem to be an offence which can be properly tried by a Police Court.
il should say then that any case which cannot be tried shortly andrapidly in point of matter and time, which involves any complexity of
1 7 N.L. B. let.
HOWARD CJ.—Sivaparkasapi Uai o. Supramaniam.
. 183
law, fact or evidence, and double theory of circumstances, or anydifficult question of intention, or identity, or in which the punishmentought really to exceed two years, is one that is not properly triablesummarily. I mention the latter point, as Magistrates should, I think,take care to consider and distinguish between cases which althoughtriable by a District Court are punishable only to the full extent by theSupreme Court, and those in which the limit of punishment is withinthe jurisdiction of the District Court.
There may of course be other circumstances which would negativethe propriety of a summary trial, and which will have to be dealt withas they arise.”
The Judges in Silva v. Silva (.supra) have expressed the opinion that acase involving any complexity of law, fact or evidence is not one that is-properly triable summarily. In this case the learned Magistrate hasexpressed the opinion that the facts of the case are simple and no pointsof law are involved. It appears from the record that on May 17, 1940,the appellant was charged that, being employed by the complainant,with intent to defraud the latter he made false entries in the accountskept by him on various dates in respect of various sums of money andmore particularly between October 14, 1939, and March 31, 1940, inrespect of Rs. 1,173.09 and thereby committed an offence punishableunder section 467 of the Penal Code. On May 19, 1940, the charge wasamended and the appellant charged that, being employed as clerk andcashier, he wilfully and with intent to defraud falsified and alteredcertain books specified in the charge or wilfully or with intent to defraudmade false entries, vide sheet annexed, and thereby committed an offencepunishable under section 467 of the Penal Code. The annexed sheetcontained particulars of eighteen false entries. On July 22, 1940, thecharge was again amended and the appellant charged with not onlybeing a clerk or cashier employed by the complainant but also “ actingin the capacity of such clerk or cashier The annexed sheet was alsoamended by increasing the number of alleged false entries from eighteento forty-three. These amendments to the charge indicate that theMagistrate at the outset of the case was confronted with considerabledifficulties in framing the charge. Those difficulties arose from doubtsas to the capacity in which the appellant should be charged and as towhether each separate falsification that was alleged should be specifiedin the charge. It is probable that difficulties ensued in consequenceof an incomplete understanding of the provisions of section 467 of thePenal Code and the explanation annexed thereto. Having regard tothese difficulties and the complexity of this provision it is difficult toappreciate how the learned Magistrate could have expressed the opinionthat the facts of the case are simple and no points of law are involved.A case involving forty-three seperate falsifications cannot be regardedas simple. In the case of Silva v. Silva (supra), Middleton J., moreover,stated that any case which cannot be tried shortly and rapidly in point ofmatter and time “ is not ” properly triable summarily. The recordindicates that the case took six days to try. It, therefore, cannot besaid to be a case that can be tried “ shortly and rapidly in point of timeand matter”. The further reasons given by the Magistrate for trying
HOWARD CJ.—Sivaparkasapillai v. Supramaniam.
this case summarily, namely, (3) the nature of the case, (4) all the circum-stances of the case, (5) it is expedient to do so, and (6) it is economical todo so require brief consideration. (5) and (6) cannot be regarded asvalid reasons. With regard to (3) and (4) I am of opinion that theseconsiderations should have led the Magistrate to the conclusion that theinterests of justice would not be furthered by a summary trial. Thenature and circumstances demanded a preliminary investigation by acommitting Magistrate, the supervision and control of the Attorney-General and the aid of Crown Counsel to conduct the prosecution. Inthese circumstances I am of opinion that the learned Magistrate waswrong in coming to the conclusion that this was a case “ properly ”triable summarily.
In Silva v. Silva (supra) the question was considered as to whetherthe decision of a Magistrate under section 152 (3) of the CriminalProcedure Code was subject to review by this Court. In this connectionWendt J. stated as follows : —
“ His opinion is a condition precedent to trial; without it he has nojurisdiction. I cannot, however, accept the view that his opinion isfinal and not subject to review by this Court. The very fact that thatopinion is the basis of an exception to the general rule of jurisdiction'is in my opinion a reason for holding that it is not conclusive. Andfrom the nature of the thing it is at least as expedient that theMagistrate’s opinion should be submitted to the revision of the AppellateTribunal as that the guilt or innocence of the accused should be.”
The following passage also occurs in the judgment of Middleton J.: —
“ Whether the case may be properly tried summarily is a matterprimarily for the Magistrate being a District Judge to decide, but Icannot see that the Legislature intended that his decision should bebeyond appeal. It is possible that his opinion might be an erroneousone, and our jurisdiction in appeal extends to the correction of allerrors in fact or in law which shall be committed by a District Judge."
A similar opinion was also expressed by de Sampayo J.
Following the opinions expressed by the Judges in Silva v. Silva (supra)
I have, therefore, come to the conclusion that the decision of a Magistrateto try an accused person summarily under the provisions of section 152 (3)of the Criminal Procedure Code is subject to review by this Court. Thefurther point as to whether if no objection is made by an accused personwhen the Magistrate assumes ' jurisdiction such objection can be takenin this Court, now requires consideration. In Silva v. Silva (supra) theobjection was taken when the Magistrate assumed jurisdiction. InSheddon v. Agosingho1 the report does not expressly state whether theobjection to the Magistrate trying the case summarily was taken by theaccused when he assumed jurisdiction. The report, however, ratherindicates that objection was only taken in the Supreme Court on appeal.In Reg. v. Uduman ‘ the objection to the Magistrate assuming jurisdictionon the ground (a) that his discretion should be exercised immediatelyafter hearing the evidence of the complainant or other witness asenjoined by section 148 (b) that an offence under section 444 should not» 14 C. L. Bee. 43.• 4 tf. L. B. 1._
Nair v. Yagappan.
be tried summarily, was upheld although objection was not made whenthe Magistrate assumed jurisdiction. In Ramasamy v. Sinnochchi1de Sampayo J. held that an offence, whether coming under sections 443or 444 of the Penal Code, was of a very serious character and ordinarilyshould not be tried by a Police Magistrate even with the consent of theaccused. In this case the Magistrate assumed jurisdiction under section166 of the Criminal Procedure Code. In spite of the Magistrate assumingjurisdiction with the consent of the accused an objection taken by thelatter on appeal was upheld and the case remitted to the Magistrate forthe taking of non-summary proceedings with a view to a committal to ahigher Court. It is true that Ahamadu Levvai v. Abdul Caffoor ’ is authorityfor the proposition that the objection to the Magistrate trying the casesummarily should be taken by the accused when the Magistrate assumesjurisdiction. The report of this case is, however, meagre and I am notprepared to follow it in view of the other cases I have cited. I am,therefore, of opinion that the first ground of appeal succeeds. In thecircumstances the necessity for considering the second ground does notarise. The appeal must be allowed and the proceedings quashed. Ifurther order that the case be sent back in order that the Magistrate ofTrincomalee may take non-summary proceedings with a view tocommittal to a higher Court.