( 65 )
SIYADORIS ». GUNAWARDENA et al.P. C., Galle, No. 18,082.
Criminal procedure—Inquiry into complaint for offences beyond andwithin summary jurisdiction of Magistrate—Procedure to befollowed.
When a Magistrate is inquiring into a complaint containingoffences both' beyond and within his summary jurisdiction, and,after evidence is recorded, comes to the conclusion that the offencebeyond his jurisdiction is not made out, he should discharge the'accused from the graver offence and formally record that dischargebefore calling on him to answer to a charge of the offence withinhis jurisdiction and proceeding to the trial of that charge.
H E complainant, in his plaint, charged the accused withunlawful assembly and riot, and further charged the third
and fourteenth accused with theft of a padda boat of the value ofRs. 150. The magistrate took evidence, framed a charge undersection 140 of the Ceylon Penal Code against all the accused forbeing members of an unlawful assembly, and convicted them ofthat offence. The accused appealed.
Domhorst, for appellants.
Jayawardena, for respondent.
11th October, 1895. Bonseb, C.J.—
This conviction cannot stand. This case is on all fours with thecase of Saram v. Weera (P. C., Colombo, No. 37,639) reported in1 New L. Rep. p. 95.
The Magistrate has mixed up the proceedings with a view to com-mittal with proceedings for a. conviction in a summary trial. • The con-viction must be quashed, and the case transferred to the DistrictCourt of Galle. It is alleged that this is a dispute involving nativecustoms and usages of the villagers and the District Judge mightwell avail himself of the assistance of assessors who are acquaintedwith such customs and usages.
The case is, therefore, transmitted to the District Court of Galleto be tried with assessors, the proceedings in the Court below being,quashed so far as it is necessary for such purpose.
I agree in the Chief Justice’s order, and I am entirely at onewith him in his judgment in the case of Saram v. Weera.
I only wish to repeat here what I have laid down in a pre-vious judgment, viz., that when a Magistrate is inquiring intoa complaint containing offences both beyond and within hissummary jurisdiction, and, after evidence is recorded, comes to
( 66 ).
the conclusion that the offence beyond his jurisdiction is not madeout, he should discharge the accused from the graver offence and
formally record that discharge before calling on him to answera charge of the offence within his jurisdiction, and proceedingthe trial of that charge.
I quite agree in what has just been said by my brother Withers.
SIYADORIS v. GUNAWARDENA et al