062-NLR-NLR-V-63-THE-ATTORNEY-GENERAL-Applicant-and-P.-KARUNARATNE-and-another-Respondents.pdf
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T. S. FERNANDO, J.—The Attorney-General v. Karunaralne
Present : T. S. Fernando, J.THE ATTORNEY -GENERAL, Applicant, and P. KARTJNARATNEand another, Respondents
S. C. 204—Application in Revision in M. C. Mat ale, 6,402
Appeal—Revision—Charge of causing hurt to a public servant to deter him from dis-charging his duty—Conduct of public servant without lawful authority—Acquittalof accused although guilty of minor offence of causing hurt—Failure of Magis-trate to exercise his discretionary power to convict of minor offence—Remedyof prosecution—“ Error in law or in fact ”—Penal Code, ss. 323, 344, 314,343—Criminal Procedure Code, ss. 129 (1), 183, 330 (1), 338, 357 (3).
By section 193 (1) of the Criminal Procedure Code—
“ When a person is charged with an offence consisting of several parti-culars a combination of some only of which constitutes a complete minoroffence and such combination is proved but the remaining particulars arenot proved he may be convicted of the minor offenoe though he was notoharged with it.”
Held, that, if a Magistrate acquits the accused without exercising the discre-tionary power vested in him under section 183 (1) to convict the accused of theminor offence, the Attorney-General is not entitled to appeal from the orderof acquittal, inasmuch as the failure to exercise a discretion vested in the Courtdoes not constitute an ** error in law or in fact ” within the meaning of section338 (1) of the Criminal Procedure Code. In such a case, however, the SupremeCourt may exercise its revisionary juris diction.
-A-PPLICATION to revise an order of the Magistrate’s Court, Matale.V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.
8. B. Lekamge, for the accused-respondents.
Cur. adv. vult.
August 2, 1960. T. S. Fjsbnando, J.—
This application by the Attorney-General to revise the order made inthis#case in the Magistrate’s Court came to be made in the followingcircumstances.
The two persons accused were charged in the Magistrate’s Court withthe commission of the offences described below :— 1 2
(1)The 1st accused, for causing hurt to one R. W. Bandaranayake,
the Village Headman of Attipola when the latter was engagedin the discharge of his duty—section 323 of the Penal Code ;
(2)The 2nd accused, for abetting the 1st accused in the commission
of the offence above described—-section 323 read with section102 of the Penal Code ;
T. 8. FBBNANDO, J.—The Attorney-General v. KarunartUne
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Both accused, for using criminal force on the said Headman whenthe latter was engaged in the discharge of his duty—section 344of the Penal Code.
The facts as accepted by the learned Magistrate were as follows :—
Bandarayake is the Village Headman of Attipola, and on 3rdSeptember 1959 at about 6.30 p.m. a complaint was made to him by oneAsoka Aluvihare that the 1st accused had abused him and that later the2nd accused who is the brother-in-law of the 1st accused had come tohis house and threatened him. After recording this complaint, theHeadman in the company of Aluvihare, the complainant and anotherperson, a villager, went along to the house of the 1st accused who happensto be a relative of the Headman. The latter went up to the 1st accusedwho was in the garden—the time was about 7 p.m. then—and explainedto him the nature of the complaint. The 1st accused thereupon abusedthe Headman, calling him a son of a whore, and inquired whether he hadtaken sides in the matter. The abuse was followed up with blows aimedby the 1st accused on the back and right shoulder of the Headman. The2nd accused who had been with the 1st accused at the time held theHeadman in such a way that he was unable to retaliate or defend himself,and, while so held by the 2nd accused, the 1st accused dealt more blowson the headman. At a certain stage all three persons {the headman andthe two accused) fell on the ground at which moment the 1st accusedcaused an injury to the sexual organ of the Headman.
In spite of the acceptance of the evidence of the witnesses for theprosecution and the rejection of the evidence of the accused persons, thelearned Magistrate acquitted the accused of the charges on the groundthat the Headman purported to investigate a non-cognizable offenceand to do so lawfully he should have received an order from a Magistratein tonus of section 129 (1) of the Criminal Procedure Code. In doingso he followed the ruling contained in the old case of Mudalikamy v. Jsma1.Learned Crown Counsel appearing before me did not question the correct-ness of the application by the Magistrate of the ruling of this court inMiuLalihamy's case (supra). In answer to my inquiry why the procedureby way of appeal was not resorted to in the circumstances of this case,Crown Counsel submitted that an appeal was not competent as theMagistrate was correct in holding that the Headman bad nc lawfulauthority to investigate the offence. He argued that an appeal againsta judgment of a Magistrate’s Court being competent, in terms of section338 of the Criminal Procedure Code, only in respect of any error in lawor in fact, this case fell within the ruling of the Privy Council in the caseof Mnhindar Singh v. The King 2. In that case Their Lordships of theJudicial Committee, interpreting the words “ error in law or in fact”appearing in the corresponding section of the Code of Criminal Procedureof the Colony of Singapore, were of opinion that there was not sufficientjustification for an interpretation of those words in any but the naturalsense that they convey to one familiar with legal phraseology. Basing his
1 {1916) 19 N. L. R. 286.
» {1950) A. C. 345.
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T. S. FERNANDO, J.—The Attorney-General v. Karunaratne
argument on this case Crown Counsel submitted that, as it is implicitin the learned Magistrate’s findings of fact that the accused have com*mitted an offence clearly calling for punishment, the Magistrate shouldhave exercised the discretionary power vested in him by section 183of the Criminal Procedure Code and convicted the accused of the minoroffences of causing hurt, the abetting of the causing of hurt and of usingcriminal force respectively. I agree with the argument that the failureto exercise a discretion vested in the Court does not constitute an errorin law or in fact, and that therefore no appeal was competent in thiscase. It follows therefore that no exception can be taken to the procedureof revision which was the only remedy available to the prosecution beinginvoked by the Attorney-General in the circumstances of this case.
Turning now to the question of the powers of the Supreme Court inthe exercise of its revisionary jurisdiction, it has to be observed thatsection 357 (3) of the Criminal Procedure Code debars the conversionof a finding of acquittal into one of conviction. It is theiefore necessaryin the first place to consider what the acquittal by the learned Magistratein this case implies. There can be no doubt whatsoever that the accusedpersons have been acquitted of the offences punishable under sections 323,323/102, and 344 of the Penal Code respectively. Crown Counsel contendsthat they have not been acquitted of the minor offences of causing hurt(section 314), the abetting of the causing of hurt (sections 314/102) andof using criminal force (section 343) as the Magistrate never gave his mindto the question either of convicting or of acquitting them of these minoroffences, and urges further that if he had given his mind to that questionhe would, in view of his findings of fact, without doubt have convictedthem of the minor offences in the exercise of his discretion under section183 of the Criminal Procedure Code.
I called Crown Counsel's attention to section 330 (1) of the Code whichdeclares that a person who has once been tried by a court of competentjurisdiction for an offence and convicted or acquitted of such offenceshall while such conviction or acquittal remains in force not be liable tobe tried again for the same offence nor on the same facts for any otheroffence for which a different charge from the one made against him mighthave been made under section 181 or for which he might have beenconvicted under section 182. This subsection as reproduced above iscapable of the interpretation that an acquittal on a charge of committingan offence is no bar to a prosecution for a minor offence as is referred to insection 183 of the Criminal Procedure Code, but I am deterred in placingsuch an interpretation (1) by the existence of illustration {a) to section330 which recognises that an acquittal on a charge of committing a“ major ” offence implies also that the person concerned cannot later beproceeded against in respect of a minor offence which is considered ashaving been included in the ** major ” offence, 2 3
(2)by the practice of our courts and
(3)by certain decisions of the Indian Courts on the correspondingsections in the Indian Criminal Procedure Code. It may be useful in this
T. S. FERNANDO, J.—The Attorney-General v. Karunarettne
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connection to quote from the judgment of one such -case, Bombay Govern-ment v. Abdul Wahab l, a decision of three judges of the Bombay HighCourt, in the course of which Chagla J. stated :—
“ The learned judge seems to take the view that 'section 403 (oursection 330) 011I3' affords protection against the accused being tried forthe same offence or for offences with which he might have been chargedunder section 237 (our section 182), but the section affords no protectionagainst a new trial in respect of a minor offence under section 238(our section 183). As we have pointed out, minor offences are includedin the major offence, and if the accused is sought to be tried at a newtrial on a minor offence, he would be tried -for the same offence asprovided by section 403, and the new trial would be barred by section403. Therefore the protection given under section 403 does not merelyapply to cases falling under section 237, but also to cases falling undersection 238.”
I agree with the argument of Crown Counsel that an illustration to asection must give way to the section itself if it is inconsistent with thelatter, but as T have attempted to point out above there is doubt as towhether there is any inconsistency at all between the section and itsillustration. One solution, however, of the problem I am confronted withon this application ma3r lie in the view that wbat an accused person whohas been acquitted of a “ major ” offence claims is not that he has betnacquitted also of the minor offence, but that the law has placed a statutorybar to his further prosecution for the minor offence so long as the acquittalremains in force.
Whatever the correct view may be, i.e. whether it be that the acquittalsentered by the Magistrate here include or imply also acquittals in respectof each of the three minor offences or whether it be that on a subsequent,prosecution in respect of these minor offences the accused can plead astatutory bar, it seems to me that so long as the order actually enteredstands subsequent prosecution is not competent.
As I am satisfied that the learned Magistrate did not give bis mindto the question of convicting or acquitting the accused on the minorcharges, and as I have already held that an appeal by the prosecution wasnot competent, there being no error in law or in fact but merely a non-exercise of a discretion vested in the Magistrate, I have arrived at theconclusion that the interests of public justice require that effect should begiven to the Magistrate’s findings of fact on the real cause of complaint inthis case, viz. the assault, by exercising this Court’s power of interferencein revision. I am quite conscious of the need to, exercise sparingly thejurisdiction of this Court to interfere with an acquittal by way of revision.However, as it is plain that the lower court for reasons outside the meritsof the case in respect of the assault has really declined to decide thecontroversy and has dealt with matters which really do not dispose of the
1 A. I. JR. (1946) Bomb. 38.
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The Queen v. Mudiyanse
complaint before it, I am satisfied that interference by way of revision willbe proper in this ease, the more so as the prosecution would otherwisebe left without any remedy.
In spite of the findings of fact reached by the learned Magistrate,section 357 (3) of the Criminal Procedure Code debars this Court fromconverting the order of acquittal to one of conviction. In the circum-stances J set aside the order complained against in so far as it may besaid to affect the minor charges referred to above and diiect that theproceedings in this case be continued by the two accused persons beingtried before another Magistrate on the charges indicated below :—
1st accused—on a charge of voluntarily causing hurt to Bandara-
nayake, Village Headman …. punishable under section314 of the Penal Code.
2nd accused—on a charge of abetting the 1st accused in the com-
mission of the above offence …. punishable under section314 read with section 102 of the Penal Code.
1st and 2nd accused'—on a charge of using criminal force on the
aforesaid Bandaranayake, Village Headman …. punish-able under section 343 of the Penal Code.
Order varied.