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THE KING v. FERNANDO et al.
D. G. (Criminal), Negombo, 2,354. '
Robbery—Voluntarilycausing hurt whilst committingrobbery—Juris-diction of the District Court—Powersof the Attomey-General—
Plea to jurisdiction, when to be taken—Ceylon Penal Code, $8. 385and382—CourtsOrdinance, No. 1 of 1889, s.73—Criminal
Procedure Code, s. 387.
Under section 387 of the Criminal Procedure Code the Attorney^Generalhas large powersofcommitment; andthe Supreme
Court will not' interfere with his discretion unless such discretionhas been manifestly abused.
The accused were committed for trial before the District Courton an indictment containinga charge of robberyunder section
380 of the Penal Code. The evidence disclosed that the accusedhad also committed hurt in the course of the robbery, an offencepunishable under section382of thePenalCode and triableonly
by the Supreme Court.Theaccusedwereconvicted by; . theDis-
trict Court under section 380 without any objection to. the juris-diction oftheCourtbeingraised. In appeal itwas , objected on'
their behalf thattheDistrict Courthad no jurisdictiontotry- fhe
case, as the evidence disclosed an offence punishable under ,section382 and triable only by the Supreme Court./*'■••
Held, that itwasopen to theAttorney-General inthe.Circum-stances to commit the accused to the District * Court,and that
the District Court had properly tried the case.
Heldt that itwasopen to theAttorney-General inthecircum-.
Ordinance,No.1« of1889,such objection shouldhave been taken,,
in the Court below immediatelyuponarraignment and before*
PPEAL from a conviction by the District Court under section380 of the Penal Code.
The facts sufficiently appear in the judgments
Domhorst, K.G.t for accused—appellants.
Van Langenberg, A. S.-G.t for the Crown.
Gut. adv. vult.
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4th August, 1905. Layabd, C.J.—1905.
After hearing the appellants' counsel in this case 1 intimated AaywtAthat as the District Judge after oarefully considering the' case hadbelieved the story for the prosecution I could not, sitting in appealreverse his finding on facts, as I had not the advantage the DistrictJudge had of hearing the evidence and seeing the witnesses in thebox. The appellants’ counsel then applied to me to set aside theverdict of the District Judge and quash the proceedings at the trialand send the case for trial before this Court and a jury. I informedhim that I was not prepared to do so.
Later on in the day appellants’ counsel suggested to me thattiie facts proved at the trial disclosed an offence under section 882of the Penal Code, which involved a very severe punishment, andpointed out an offence under that section could only be tried bythe Supreme Court. It is quite true that the appellants ought tohave been indicted under that section by the Attorney-General,and if thdy had been indicted under that section, the commit-ment could have only been to the Supreme Court.
The Attorney-General has elected under the powers vested in himunder section 887 of the Criminal Procedure Code to commit theappellants for trial before the District Court. In respect of offencestriable by that Court, it is admitted by the appellants’ counsel thatthe ’Attorney-General had that power, and that the District Courthad jurisdiction to try the indictment.presented, by the Attorney-General and could not refuse to try the case.
It is, however, argued that this Court sitting in appeal is notbound by the Attorney-General's election. If the Attorney-General,had manifestly- abused the discretion left him under section .887'
I have ho doubt this Court could interfere in appeal, as suggestedby the appellants’ counsel. I think, however, in this case there isno reason to think that the Attorney-General has not exercised awise discretion. It appears to me the punishment that the DistrictCourt could inflict is complete and sufficient, and I do not thinkthat it is desirable in every case to interfere with the discretionvested in the Attorney-General. The only cases in which thisCourt' should interfere is when the Attorney-General has abusedthe discretion left to him, and these cases are very rarely likelyto arise.
After I delivered this judgment in open Court, the appellants’counsel brought to my notice a judgment of Denser, C.J., whichconflicted with my view of the law. I thought it desirable there-fore that the question should be brought before a Bench consistingof two Judges. I have now had the advantage of hearing further
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• arguments on the point raised -by the appellants’ counsel, and IAugust 4. no^ gee my wfty gjjgj. my former opinion. I am much indebtedLatabd.C.J. to the Solicitor-General for kindly re-arguing the case on behalfof the Crown.
The two appellants in this case were indicted before the DistrictCourt for having robbed one Paulu Peeris of a purse containingRs. 81.90 and some articles of clothing, an offence punishable undersection 380 of the Penal Code. The prosecutor in his evidenceat the trial deposed that the accused and several others set uponhim as he was travelling along the high road in a cart at night,and beat and robbed him of the articles specified in the indictment.
The District Judge found that the prosecutor was assaulted,knocked down, and robbed of the purse and . of the clothes he waswearing at the time. He accordingly convicted the. appellantsof robbery (section 380, Penal Code) and sentenced each of themto one year’s rigorous imprisonment.
The accused appealed, and when their appeal was before theChief Justice their counsel desired to object to the jurisdictionof the District Court, notwithstanding the fact of the committalbefore the Court at the instance of the Attorney-General, • on theground that the voluntary causing of hurt to the prosecutor duringthe robbery rendered the accused guilty of the offence defined bysection 382 of the Penal Code, an offence triable by the Supreme .Court alone. My lord reserved this question for the considerationof two Judges, and we have accordingly heard it argued.
The following cases were cited to us:—The Queen v. Hinnia(1896) 2 N. L. R. 241 (where the attention of the Court was notcalled to the provisions of Ordinance No. 3 of 1892, section 3);The Queen v. Perera (1897) 3 N. h. R. 43; P. C. Tangalla, 13,644(1899) Koch, 43; Sirineris v. James (1901) 5 N. L. R. 93; TheKing v. Raphiel (1901) 2 Br. 253; The King v. Kolonda (1901)5 N. L. R. 236; The Queen v. Kolendavail (1891) 1 S. C. R. 198;The Queen v. Mendis (1892) 1 S. C. R. 249.
Yielding to the force of these decisions, especially of that in TheKing v. Kolonda, Mr. Dornhorst conceded that the District Courtcould not have refused to try the indictment, but he submitted■ that this Court had the power, and in this- instance ought, to holdthat the offence committed by accused could only properly betried in the Supreme Court. The Attorney-General does not takethis view; he committed the accused before the District Court,and he presumably thinks that the ^sentence of one year’s
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imprisonment, though only half of what the Court might haveimposed, is adequate to the offence.
Section 387 of the Criminal Procedure Code enacts that whenthe proceedings in a case reach the Attorney-General under section167 he may, "if he considers commitment desirable, name theCourt to which such commitment shall be made." These wordsvest a very large discretion in the Attorney-General; they seemto imply that even where an offence has been committed he mayconsider it not " desirable ’’ to commit at all, that is, of course,not desirable in the interests of justice and of the public. If thenhe may altogether refuse to commit, why may he not do what isfdr less, viz., in the present case, direct commitment for the rob-bery alone, ignoring the voluntary causing of hurt which is allegedin addition to the robbery. I do not say that in a grave casethis Court would not interfere by ordering; in terms of section347 (b), that the accused be retried by a Court of competent juris-diction, but there must first be something in the nature of proofthat the discretion vested in the Attorney-General has been abused.
As to the argument that the graver offence committed would thusescape punishment altogether, it may be pointed out thatunder section 330 (4) of the Procedure Code the accused wouldbe liable to be tried again for the offence under section 382 of thePena} Code.
The question was raised at the argument whether the appellantswere not debarred by section 73 of The Courts Ordinance fromobjecting to the jurisdiction, they not having specially pleadedto it before pleading to the indictment in the District Court. Theterms of that section are certainly large enough to cover this case,but appellants' counsel suggested that its scope should be limitedto objections to the territorial jurisdiction of the Court. Thereis nothing in the wording of the section to support this suggestion,and the point does not appear to have been judicially determined.
In Regina v.(2 8. G. C. 50) the section was .held to apply to an
objection based on the absence of a warrant of commitment underthe hand of the committing justice, and in The Secretary of theDietrict Court v. Nikajutiya (3 S. G. C. 96) to the case of an irre-gular committal. Regina v. Appuhamy (1 S. C. G. 23) was a caseof territorial jurisdiction. All these were instances of chargestriable by a District Court, though not properly brought beforethe particular District Courts in which" the trials' respectively tookplace. The present is a case in which, if appellants’ contentionis correct, no District Court could try the offence. That wouldappear rather to emphasize the necessity for the objection being
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l'd05.taken in the Court below and before plea—immediately upon
Auguet 4. arraignment, in fact ; and I am inclined to the opinion that theWbnpt J. objection now comes too late.
The Chief Justice had, before this question was raised, expressedthe opinion that the appeal failed on the merits; and it will there-fore now be dismissed.
THE KING v. FERNANDO et al.