TENNEKOON v. MARADAMUTTU

043-NLR-NLR-V-43-TENNEKOON-v.-MARADAMUTTU.pdf


"Tennekoon v. Mairadamuttu.
1C1J
1942 Present: Moseley S.P.J., Soertsz and Wijeye war dene JJ.
TENNEKOON v. MARADAMUTTU.615-22—M. C. Hatton, 1,034.
Criminal Procedure—Summary trial—Addition of fresh charge•—Assumptionof jurisdiction as District Judge—Reading over of evidence of witnessesto accused—Criminal Procedure Code, s. 252 (3).
Where a Magistrate who has started summary proceedings on chargeswhich he can try summarily adds a charge of such a nature that, unlesshe assumes jurisdiction under section 152 (3) of the Criminal ProcedureCode, he cannot try the case summarily, he is not bound to startproceedings de novo.
Gressy v. Direckze (6 N. L. R. 33) followed.
Sub-Inspector of Police Alles v. Charles Appuhamy (20 C.L.W. 100)overruled.
ASE referred by Nihill J. to a Bench of three Judges.
The facts are stated in the reference as follows :—In this case thethirteen accused-appellants were charged before the Magistrate of Hattonwith offences involving unlawful assembly and simple hurt. The Magis-trate proceeded to try the accused summarily. After hearing four ofthe witnesses for the prosecution and the medical evidence he amendedthe charges so as to include a charge of rioting under section 144 of thePenal Code. This is an offence which is not triable summarily and theMagistrate realizing this and being an additional District Judge assumedjurisdiction under section 152 (3) of the Criminal Procedure Code.
His note on the record is as follows:—“At this stage I amend thecharges. The charge of rioting will make the offence non-summary.
I however decide to try this case as District Judge. Charges undersections 140, 146, 314/144, and 314 are read and explained to the accusedfrom the charge sheet and their pleas recorded ”.
Thereafter, the evidence of the witnesses who had already been calledwas read over to the accused and they were tendered for further cross-examination.
The main point taken by Mr. Rajapakse for the appellants is thatthe procedure adopted did' not comply with the provisions of section189 of the Criminal Procedure Code in that having discontinued summaryproceedings and initiated proceedings under section 152 (3) the Magis-trate should have recorded the evidence de novo and not read overthe depositions made in the summary trial. There is authority forthis proposition in the recent case of Alles v. Charles Appuhamy 1 in whichMoseley J. so held.
Mr. Chitty for the Crown has contested the correctness of that decisionand has called my attention to the case of Gressy v. Direckzein whichWendt J. held that a conviction resting on such procedure was not badas the accused was on his trial from the commencement and had thefullest opportunity to cross-examine the witnesses. In that case acharge laid for simple hurt was converted into one of grievous hurtwhen the Magistrate assumed jurisdiction under section 152 (3).
> (1941) 20 C. L. W. 100.2 (1001) 6 -V. L. II. •?•*.
170
Temnekoon v. Maradamuttu.
A similar case reported in the same volume of the New Law Reportsis that of Abdul Coder v. Fernando'. Here the additional point wastaken that the assumption of the enhanced jurisdiction was taken attoo late a stage but overruling this, Moncrieff A.C.J. did not questionthe regularity of the proceedings themselves.
Now these are decisions of this Court taken some forty years ago andI have therefore had to consider whether' amendments made to theCriminal Procedure Code in recent years have resulted in a change ofthe law.
Section 189 was amended by section 13 of Ordinance No. 13 of 1938,and now reads as follows : —
“ 189.(1) When the Magistrate proceeds to try the accused he shall
take in manner hereinafter provided all such evidenceas may be produced for the prosecution or defencerespectively.
The accused shall be permitted to cross-examine all witnesses
called for the prosecution and called or recalled by theMagistrate.
The complainant and accused or their pleaders shall be
entitled to open their respective cases, but the com-plainant or his pleader shall not be entitled to make anyobservations in reply upon the evidence given by or onbehalf of the accused.”
Before amendment the section read thus :—
“ ,.189.(1) When the Magistrate proceeds to try the accused he shall
read over to him the evidence (if any) recorded undersection 150 and take in manner hereinafter provided allsuch further evidence as may he produced for the prose-cution or defence respectively.
The accused shall be permitted to cross-examine any person
whose evidence has been recorded under section 150 andall witnesses called for the prosecution and called or re-called by the Magistrate.
The complainant and accused or their pleaders shall be
entitled to open their respective cases, but the complainantor. his pleader shall not be entitled to make any obser-vations in reply upon the evidence given by or on behalfof the accused.”
Section 150 was also amended in 1938 but the new section as wellas the old section concerns evidence taken by a Magistrate before theissue of process. It is this class of evidence which cannot now as formerlybe read over to the accused at the commencement of the trial.
With regard to evidence taken in the presence of the accused duringa summary trial there has therefore been no change in the substantivelaw. It occurred to me that the recent case was probably one in whichevidence had been -recorded under section 150 but a study of the recordof the Magisterial proceedings has revealed that this was not the case,although from the judgment of my learned brother it would seem that the
> (1902) 6 N. L. R. 95.
MOSELEY J.—Tennekoon v. Maradamutlu.
171
case may have been argued before him on that assumption. It musttherefore I think be conceded that the recent decision conflicts with theearlier decisions.
With respect I may add that I myself agree with the view taken byWendt J. for reasons I will give later, but in view of the conflicting decisionsI prefer to submit the point for the consideration of a Bench of threeJudges.
L. A. Rajapakse (with him S. Alles and S. P. Wijewickreme), for the ac-cused appellants.—The Criminal Procedure Code provides for all possiblecontingencies that may arise during a trial, and is exhaustive. Undersection 152 a Magistrate has three alternatives. In the present case theMagistrate decided to act under sub-section (2) and followed the procedurelaid down in Chapter 18 of the Code. When, while proceeding underChapter 18, the non-summary offence of rioting was disclosed, the Magis-trate should have acted under section 193 (2) and commenced proceedingsafresh under Chapter 16. It was too late for section 152 (3) to be applied.The Magistrate assumed jurisdiction under section 152 (3) at a stagewhen he had not the power to do so.
Even if the Magistrate could have acted under section 152 (3), heshould have recalled all the witnesses for the prosecution for examinationde novo and not read over the depositions made by them previously.Alles E. Charles Appuhamy' is exactly in point. Gressy v. Direckze"and Abdul Coder v. Fernando3 were decided before section 189 of theCriminal Procedure Code was amended by section 13 of Ordinance No. 13of 1938. Even in those two cases the procedure adopted, although itwas held that it did not cause prejudice, was certainly irregular. Theolder section 189 made exception of evidence led previous to issue ofprocess. There is no such exception in the amended section. Theirregularity would be much greater in the case of reading over of evidenceled after the issue of process. Except under section 297, in no instancecan the previous evidence of a witness be read over.
The Magistrate assumed jurisdiction under section 152 (3) at too latea stage. Reg. v. Uduman et al.‘ has been consistently followed.
E. H. T. Gunasekera, C.C., for complainant, respondent.—All theevidence taken in this case was taken in the presence of the accused.Section 297, read with section 189, has been complied with.
At the lowest, English procedure would be applicable, under section6 of the Criminal Procedure Code. See section 27 of 42 and 43 Viet.,Ch. 49.
Cur. adv. vult.
February 25, 1942.' Moseley J.—
This matter has been referred by Nihill J. to a Bench of three Judges.The point submitted can in the words of the learned Judge be statedthus : —
Where a Magistrate who has started summary proceedings on chargeswhich he can try summarily, adds a charge of such a nature that, 1
1 (1041) 20 C. L. IK. ion.1 (1001) 6 N. L. R. 33.
3 (1002) C .V. L. R. os.
• (1900) 4 X. L. R. 1.
172MOSELEY J.—Tcnnekoon v. Mcradamuttu.
unless he assumes jurisdiction under section 152 (3) of the CriminalProcedure Code, he cannot try it summarily, is it incumbent upon himto start proceedings de novo ?
The facts of the case are shortly as follows : —-A number of accused werecharged with offences involving unlawful assembly and simple hurt.The Magistrate,properly proceeded to try the accused summarily. Afterhearing four witnesses for the prosecution and the medical evidence heamended the charges by adding a charge of rioting under section 144 of thePenal Code. Since this offence is not triable summarily by a Magistrate’sCourt he decided to try the case as District Judge, apparently assumingjurisdiction under section 152 (3) of the Criminal Procedure Code.
The charges as amended were read and explained to the accused, theevidence of the witnesses who had already been called was read over tothe accused and they were tendered for cross-examination. This is theprocedure to which exception was taken by Counsel for the appellantswhen the appeal was argued before Nihill J. His submission appearsto have been based upon the decision in Alles (Sub-Inspector oj Police)v. Charles Appuhamy (supra) , in which I held that, in similar circumstancesthe proper course was to commence proceedings de novo “ as provided bi-section. 189 of the Criminal Procedure Code”. I may say at once that myjudgment, in that case, was based upon the assumption that the pro-cedure followed was on all fours with that in Nair (Police Sergeant) v.Yagappan' which was the only authority brought to my notice. Inthis I was clearly mistaken and my decision in that case need be consideredno further.
It appears to have been the citation of Alles (Sub-Inspector of Police)v. Charles Appuhamy (supra) and its obvious conflict with Cressy v.Direckze (supra) which presented a difficulty to the mind cf Nihill J. Inthe latter case a Magistrate, upon a charge of voluntarily causing simple•hurt, recorded the evidence of several witnesses, and then, finding thatthe evidence disclosed an offence of grievous hurt, tried the casesummarily as District Judge. The evidence already recorded, whichhad not in fact, as in the present case, been given in the presence of theaccused, Was read over to him, and the witnesses were cross-examinedon his behalf. Objection was taken on appeal that when the Magistrateadvised himself that he might try the case summarily, he should havere-called all the witnesses for the prosecution for examination de novo.Wendt J. did not think that necessary.
“ This was not ” he said “ a case in which, proceedings having com-menced as upon an inquiry, the Magistrate afterwards made up hismind to try summarily. In such a case the accused, expecting to becommitted to a higher Court, might well hay.e forborne to cross-examinethe witnesses at the earlier stage. Here the accused^ was on his trialfrom the commencement, and he had the fullest opportunity of cross-examining the witnesses. I think, therefore, there vy.as no irregular-ity in the procedure.”^
The reference by Wendt J. to the opportunity for cross-examiningwitnesses may seem to suggest that the learned Judge was somewhat
IS C. L. W. 133.
MOSELEY J.-—Tennekoon v. Maradamuttu.
173
influenced by the fact that the accused was not prejudiced. On theother hand there is the definitely expressed opinion that the accusedwas on his trial from the commencement. If that is so. the questionof prejudice could hardly arise.
Counsel for the appellants was inclined to argue that the Magistrate,having assumed jurisdiction under section 152 (3), and having thereforeproceeded to follow the procedure laid down in chapter XVIII., mustultimately reach the stage provided for by section 193 (2), that is to say,finding the offence not within his jurisdiction as Magistrate, he shouldcommence proceedings afresh under chapter XVI. The sub-section, whenit is applied to the case of a Magistrate who has assumed jurisdictionas a District Judge, seems to me to apply, in such case, to an offence whichis not triable by a District Court. Otherwise the result would lead toan absurdity.
A further point was raised by Counsel for the appellants, namely,that the Magistrate assumed jurisdiction as District Judge at too latea stage in the proceedings. He relied upon the case of Queen v. Udumanet al.' in which the Magistrate completed taking all the evidence of thewitnesses for the prosecution and then announced his intention of tryingthe case summarily. Bonser C.J. in that case said, "It is quite clearthat the Magistrate is to make up his mind whether he will try summarilyas District Judge or not after hearing evidence under section 149 ”.The “ evidence under section 149 ” to which Bonser C.J. referred is forpractical purposes that referred tc in the present section 150 (1). I donot think this authority helps the case for the appellants. It does notappear that the Magistrate delayed unduly in assuming his enlargedjurisdiction when it became apparent to him that an offence, not triableby him as Magistrate, had been committed.
It seems to me that the simple question to be answered is. were the pro-ceedings, both before and after the assumption by the Magistrate of hisenlarged jurisdiction, part of one and the same iriai ? Wendt J. whoseobservations in Gressy v. Direckze (supra) I have quoted above, while hedoes not say so in so many words seems to have answered the questionin the affirmative. No other authorities on the point have been broughtto our notice and, for mvseif, I have no hesitation in the present case inexpressing my opinion that the assumption of enhanced jurisdiction bythe Magistrate did not mark the beginning of a new trial.
In my view it was not incumbent upon the Magistrate, as DistrictJudge, to start proceedings de novo.
This is the only question to be decided. Since it is decided againstthe appellants, these appeals are dismissed.
Soertsz J.—I agree
Wijeyewardene J.—I agree.
Appeals dismissed.
4 3/15
i 4 .V. L. R. 1.