084-NLR-NLR-V-36-THE-KING-v.-PODIHAMY-et-al.pdf
407
MAARTENSZ J.—The King v. Podihamy.
1935Present: Maartensz J.
THE KING v. PODIHAMY et al.
148-9—D. C. (Crim.) Kegalla, 2,530.
Criminal Procedure—Accused remanded by District Judge as Police Magistrate
—Inquiry held by another Magistrate—Trial before District Judge—
Regularity.
An accused person was produced before a District Judge, who wasalso Police Magistrate, and the Judge in the latter capacity ordered himto be remanded and certain finger impressions to be taken.
Thereafter the accused was charged before another Magistrate, whoheld the non-summary inquiry and committed him for trial.
Held, that it was competent for the District Judge to try the accused.^ PPEAL from a conviction by the District Judge of Kegalla.
Rajapakse (with him D. J. R. Gunawardene), for accused, appellant.
Pulle, C.C., for the Crown.
March 14, 1935. Maartensz J.—
This is an appeal from a judgment of the District Judge of Kegallaconvicting the first and second accused in the case of criminal trespass,robbery, and causing hurt whilst committing robbery—offences punishableunder sections 437, 380, and 382 of the Penal Code.
I see no reason to dissent from the learned Judge’s finding of facts andthe only question for decision is one of law. The legal objection takenhere and in the District Court was as stated in the petition of appealthat “ the learned Judge should not have tried the case since he as PoliceMagistrate had made orders in connection with the non-summary inquiry.”
I think the words “ in connection with the non-summary inquiry ” andnot the words '* in the non-summary inquiry ” were advisedly used,for the orders were made before the plaint was filed against the accused.
The plaint was filed on September 18, 1934, and from that stage theinquiry was held by the regular Magistrate. The offences are allegedto have been committed on September 8. On September 10 these twoaccused and four others were produced before the District Judge who was
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MAARTENSZ J.—The King v. Podihamy.
also a Police Magistrate, and he ordered the accused to be remandedtill. September 14, and their finger impressions to be taken for comparisonwith some impressions found on certain articles in the house which wasbroken into.
It was submitted that in terms of section 392 of the Criminal ProcedureCode the District Judge was the prosecutor on those dates and wastherefore disqualified to try the accused after committal. I do notthink that submission is applicable in every case, for a Police Magistrate,who is also a District Judge, may under the provisions of section 152 (3)of the Code try summarily as District Judge an offence after commencingthe proceedings as a non-summary inquiry, where the offence thoughtriable by a District Court appears to the Magistrate to be one which he-may try summarily. Bonser C.J. held in the case of Queen v. Uduman*that the discretion should be exercised by a Magistrate immediatelyafter hearing the complainant or cither witnesses as required by section 149,and that it was not competent for him to take all the evidence for theprosecution as committing Magistrate and then try the case as DistrictJudge.. The Chief Justice applied to section 152 the rule contained insection 18 of the Code that “ no District Judge shall, except with theiexpress consent of the accused, try any case which he had committedfor trial as Police Magistrate”. This section, in my opinion, contem-plated that the inquiry would be held to conclusion and the accusedcommitted for trial by the same Magistrate. Under section 157 of theCode the Magistrate when an inquiry is completed sends the case to theAttorney-General with a view to the accused being committed for trialif he finds that there are sufficient grounds for committing the accusedfor trial. It would be manifestly unfair to the accused for the Magistrateto try him subsequently as District Judge as he has already formed anopinion with regard to the effect of the evidence for the prosecution.
The case would be very different where the Magistrate who committedaccused for trial was not the Magistrate who held the inquiry and sent/the record to the Attorney-General. But he would not be competentto try the accused except with his express consent for he would beviolating the provisions of section 18. Nor in my opinion would it becompetent for the Magistrate who held the inquiry and forwarded therecord to the Attorney-General to try the case although he did notcommit the accused for trial, since it could be urged against him that hehad formed an opinion with regard to the evidence and the witnessesin the case.
The orders made by the District Judge in this case as Police Magistrateare of a purely formal character which did not involve the exercise ofany discretion with regard to the credit to be attached to the evidenceagainst or available against the accused and it cannot possibly be saidthat he could not do justice to the accused or that the accused had reasonto think that the exercise of justice was not free from suspicion.
I am of opinion, therefore, that the District Judge was not disqualifiedby the orders he made as Police Magistrate from trying the case, and Idismiss the appeal.
Appeal dismissed.
1 (1900) 4 N. L. R. 1.