059-NLR-NLR-V-09-THE-KING-v.-ALAHAKOON-et-al.pdf
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19103.
September 10.
Present: Mr. Justice Middleton.
THE KING v. ALAHAKOON at al.
D. C. (Criminal), Kegalla, 1,308.
Magistrateinitiating proceedings—CommittalbysuchMagistrate—
Validity—" Party ”—“ Personally interested ”—CourtsOrdinance
(No. 1of 1889), s. 90—Criminal Procedure Code, s. 148 (c)—Penal
Code, s. 208.
Where a Police Magistrate institutes proceedings against anaccused under section 148 (c) of the Criminal Procedure Code (No. 15of 1898)such Magistrate cannot be said tobea partyto, or to be
personally interested in, the proceedings within the meaning ofsection 90 of the Courts Ordinance (No. 1 of 1889); and it is noobjectionto the validity of a committalthatit wasmade by a
Magistrate who bad instituted proceedings as aforesaid.
T
HE accused charged one Kirala in P. C., Kegalla, 4,916, with•committing mischief by fire. The. Magistrate, who inquired
into the charge, being of opinion that it was false, initiated proceed-ings against the accused under section 148 (c) of the Criminal Pro-cedure Code and committed them for trial on an indictment chargingthem with an offence under section 208 of the Penal Code. At thetrial it was objected, on behalf of the accused, that they were notproperly committed for trial, inasmuch as the Magistrate, whocommitted them, was a party to the proceedings by reason of hishaving initiated proceedings against them; and that the committalwas therefore bad. The District Judge upheld the objection to thecommittal and discharged the accused.
The Attorney-General appealed.
Walter Pereira, K.G., for the Crown.
Bawa, for the respondent.
Cur. adv. vult.
10th September, 1906. Middleton J.—
This was an appeal by the Attorney-General from an order of theDistrict Judge discharging the accused on an indictment laid beforehim, on the ground that the .Magistrate who committed the case fortrial was a party or personally interested in the case, and undersection 90 of “ The Courts Ordinance, 1889, ” was not competent tocommit the case for trial.
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The Magistrate, it appears, in the course of taking evidence in 1906P.C., 4,916, was induced thereby to issue warrants against the present September 10.accused on ,the charge for which they are now indicted under section Middleton208 of the Penal Code, and the learned District Judge holds thatthis makes the Magistrate a party or personally interested in thecase.
To my mind theie is a very considerable difference betweenmaking a charge as prosecutor like a police officer or as complainantupon au offence touching one's personal interests and being inducedas a Magistrate officially to issue process upon evidence whichappears to show an offence has been committed. I 'take it that thewords ‘‘a party or personally interested” mean that the Magistratemust be interested as an individual directly as a prosecutor orpecuniarily or affected personally by the offence and not interestedas a Magistrate whose public duties render it obligatory on him totake care that when evidence discloses other co-offenders thanthose before him or that an offence has been committed by someone else, process should issue to compel them to face investigationalone or with the original accused.
The Magistrate here apparently acted under section 148 (c) of theCriminal Procedure Code and recorded a brief statement of hisgrounds for issuing process as required by section 149 (3), and theformer sub-section" (c) protects an accused person, if he requiresit, from being tried by the Magistrate upon whose knowledge orsuspicion he has been arrested. In the present case the DistrictJudge about to try him was not the Magistrate who committedhim.
Even if a Magistrate under such circumstances could be lookedupon as a party, my view is that the later section 148 (ic) must beregarded as modifying the terms of the earlier section 90 of the CourtsOrdinance.
In the case of Reg. v. Appuhamy (1) the Magistrate formally madehimself a party to a complaint for giving false evidence, and was nodoubt rightly held to be a party by Clarence J;, but under the existingCriminal Procedure Code a Magistrate may now under section 440deal summarily with such a case, and the procedure is varied in manyparticulars. t
In my opinion the Magistrate did not make himself a party in thiscase by acting under section 148 (c), nor was he personally interestedeither directly or pecuniarily, and I allow the appeal and set asidethe order of discharge and direct that the indictment laid by theAttorney-General be tried in due course.
(1) (1888) 8 S. C. C. 167.