038-NLR-NLR-V-67-T.-M.-P.-MAHAWASALA-Appellant-and-INSPECTOR-OF-POLICE-KOHUWELA-Respondent.pdf
1964Present: H. N. G. Fernando, J.T.M. P. MAHAWASALA, Appellant, and INSPECTOR OFPOLICE, KOHUWELA, Respondent
8. C. 593163—M. C. Colombo South, 15333}N
Criminal Procedure Code—Sections 152 (3) and 292—Assumption of jurisdictionunder s. 152 {>?) by Magistrate—Power of new Magistrate to hear the case fixedfor trial by his predecessor—Courts Ordinance, s. 88.
Where a Magistrate, after assuming jurisdiction under section 152 (3) of theCriminal Procedure Code, charges the accused and fixes the case for trial,it is open to his successor in office to continue the case from that stage withoutforming his own opinion on the question whether to assume such jurisdiction.
Appeal from a judgment of the Magistrate’s Court, Colombo South.E. A. G. de Silva, for the Accused-Appellant.
D. S. Wijesinghe, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 21, 1964. H. N. G. Fernando, J.—
In this case the Magistrate of Colombo South assumed jurisdictionunder Section 152 (3) of the Criminal Procedure Code, charged the accusedand then fixed the case for trial. By the time the case was taken up
for trial, that Magistrate had ceased to hold office and on the date oftrial the case was taken up before a new Magistrate. He having madea minute, “ I proceed to hear this case as Additional District Judgeas jurisdiction has already been assumed by my predecessor ”, triedthe case and convicted the accused. The principal submission onappeal has been that the new Magistrate did not form his own opinionon the question whether to assume jurisdiction and that on that groundthe trial before him in hie capacity as Additional District Judge wasillegal.
Support is to be found for Counsel’s submission in the concludingparagraph of the judgment of Windham J. in Perera v. Inspector of Police,Maharagama 1. He refers (at page 14) to the judgment in HendrickHamy v. Inspector of Police, Kandana 2, deciding that the succeedingMagistrate ought to form his own opinion as to whether the case is onethat may properly be tried by him summarily as District Judge andexpresses his entire agreement with that decision. In the case beforeWindham J. the succeeding Magistrate had made no minute at all inregard to the assumption of jurisdiction and all that appeared in therecord was that he proceeded to try the case which had been fixed fortrial by his predecessor after the latter had assumed jurisdiction.Windham J. held that it would be presumed that the succeedingMagistrate had “ looked at the record, including the opinions and reasonsof his predecessor, and that he adopted his predecessor’s opinion andhis assumption of jurisdiction ”. In the present appeal counsel hassubmitted that a minute made by a new Magistrate can raise no suchpresumption, because its terms appear to indicate that he tried the caseas Additional District Judge merely because his predecessor hadaheady assumed jurisdiction as such. I agree that if the law onthe point was correctly stated by Windham J. in the concluding para-graph of the judgment in Perera v. Inspector of Police, Maharagama,there would be substance in Counsel’s present submission. But thematter does not end there. The case just mentioned was one referredto a Bench of three Judges in view of the conflict between Gunawardene v.Veloo 3 and Hendrick Hamy v. Inspector of Police, Kandana 4. In all threeinstances, as also in the present case, a new Magistrate had withoutrecording a decision under Section 152 (3) proceeded to try a case fixedfor trial by his predecessor after the assumption of jurisdiction. Indealing with the question referred Windham J. (at page 13) held thatthe Section in the light of which section 152 (3) should be interpretedis section 88 of the Courts Ordinance and he thus explains the scopeand effect of that section : — “ The section provides that such prosecutionmay be ‘ continued before the successor of such judge ’. It seemsto me that this provision necessarily implies that the new judge shallstep into the shoes of the original judge and may carry on from thepoint where he left off'. Any act lawfully done in the case by the originaljudge may therefore be adopted by the new judge as if it had been
(1948) 50 N. L. R. 107.
(1948) 50 N. L. R. 116.
done by himself, without the necessity of his having to do such acthimself afresh. And this as I see it, would apply to the act of assumingjurisdiction under section 152 (3). There is in my view no question ofhis having independently to assume or re-assume jurisdiction. He isat liberty to vest himself in the cloak of jurisdiction which has alreadybeen assumed by his predecessor.”
The statement of the law in the concluding paragraph of the judgmentis not readily reconcilable with Windham J.’s explanation of section 88which I have just reproduced. But if so I readily endorse the opinionthat section 88 did permit the new Magistrate in the present case (asalso in the earlier three cases) to proceed to trial without forming anindependent decision to act under section 152 (3). Section 88 clearlyenables the continuance of the prosecution before a succeeding judge,and in my opinion the continuance of a proceeding does not involvethe repetition or duplication of procedural steps previously taken.Once the case was fixed for trial by the original Magistrate afterhe decided to assume jurisdiction the next step in the procedure wasthe commencement of the trial before the Additional District Judge,which latter office came by the time of the trial date to be held bythe new Magistrate, and section 88 did not require him to reconsiderthe earlier decision to assume jurisdiction.
While there is nothing in the Criminal Procedure Code expresslyproviding that a new Magistrate need not consider afresh the questionof acting under section 152 (3), there is on the other hand nothing inthe Code which states that such a fresh consideration is necessary. Butthe examination of the operation of section 292 in a particular situationserves to show that the course which the succeeding Magistrates havefollowed is not legally objectionable. This was a point which Wijeye-wardene J. attempted to make, but it seems to me that the force of itwas not appreciated in the subsequent judgments.
Wijeyewardene, A.C.J. in Gunawardene v. Veloo1 contemplateda case where a Magistrate assumes jurisdiction under section 152 (3),and commences to hold a trial in his capacity as District Judge, butceases to hold office before the conclusion of the trial. In such a situation,section 292 authorises the succeeding Magistrate to continue the casefrom that stage, without it being necessary for him to consider afreshwhether to act under section 152 (3). In other words section 292 clearlyauthorises a proper continuance where there has been both (a) an assump-tion of jurisdiction, and (5) the recording thereafter of some evidence,by the former Magistrate. Since such a continuance is authorised byexpress provision in the Code, a fortiori, there can be no objection to aproper continuance where the former Magistrate has not recorded evidencebut only reached the stage of fixing the case for trial.
I would hold for these reasons that there can be no objection to theprocedure adopted by the Magistrate in this case. The appeal is dismissed.