078-NLR-NLR-V-14-THE-KING-v.-UMERUGATTA.pdf
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Present: Wood Rentoft J.
THE KING v. UMERUGATTA.
74—D. C. (iCririt.) Batticaloa, 2,531.
Jurisdiction—Formal committal of case for tried by Police Magistrate^-The Police Magistrate cannot try cdie as District Judge-r^Crimidm'Procedure Code ««. 18 and 425.'•
A Police Magistrate who did not hold the non-summary inquiry,and who did nothing more than formally commit the case for trialto the District Court, was held to have had no jurisdiction to trythe case as District Judge without the consent of the accused.
A trial by such a District Judge is not an irregularity which canbe cured under section 425 of the Criminal Procedure Code.
fj^HE facts are fully set out in the judgment.
Hay ley, for the accused, appellant.—The District Judge; whoisPolice Magistrate as well, had himself committed this case for trial.Section 18 of the Criminal Procedure Code prohibits a District Judge*,who had as Police Magistrate committed a case for trial, from tryihgthe case, except with the express consent of the accused. In thepresent case the accused objected to his being tried by the present.District Judge. The objection is not a merely technical objectionthe committing Magistrate, even if he had. not held the non-summaryinquiry, might have read the confidential report in the case.
Walter Pereira, K.C., S.-G., for the respondent.*—The DistrictJudge had over-ruled the objection on the grbund that he haiHiPtheard the evidence at the Police Court inquiry-. . The', accused h&anot been prejudiced in the least. If the District Judge had ajcte{l;irregularly, section 425 of the Criminal Procedure ^de.wdulcf”$ure.the irregularity.
Cur. itdv. yttlt.
June 8, 1911. Wood Renton J.—
I am not prepared in this'case to uphold Mr. Hayley’s contentionthat, even on the evidence as it appears in the record, the accused-appellant is entitled to an immediate acquittal. As I think there-'ought to be a new trial, it is obviously better .that I should Saynothing about the evidence at present.' There remains; howpVer,the important point of law which jrir. .Haytey puf in.the Fofefrbtjtpf his case. The learned District judge who tried' this case waslipt ■
Junes, 1911
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June 8, ion the Police Magistrate who actually conducted the inquiry. But it wasWood he who formallycommitted the accused for trial in the District Court,Kenton .i. and who tried him there. Under these circumstances Mr. HayleyThelcingv. Contends that the provisions of section 18 of the CriminalVmeruqatto Procedure Code apply. That section provides that “ no DistrictJudge shall, except with the express assent of the accused, try anycase which he has committed for trial as Police Magistrate.” Theaccused certainly did not consent here to the case being tried by .the District Judge. On the contrary, an express objection was'taken to its being tried by him. The learned District Judge metthat objection by pointing out that he had not heard the evidence,and, therefore, did not come within the purview of section 18 ofthe Criminal Procedure Code. In my opinion, we must look to thelanguage of that section itself. It recognizes no exception infavour of a Police Magistrate who has not heard the evidence at apreliminary inquiry. It prohibits a Police Magistrate who has“ committed ” an. accused for trial as such from trying him asDistrict Judge. There was, therefore, here a clear irregularity,and the only question is whether it can be cured under section 425of the Criminal Procedure Code. The answer to that questiondepends on the meaning that we assign to the first clause of thatsection. It is in these terms : “ No judgment passed by a court ofcompetent jurisdiction shall be reversed or altered on appeal orrevision ” on account of certain specified irregularities, unless theyhave “ occasioned a failure of justice.” What then is the meaning ofthe section ? It was argued by the learned Solicitor-General thatthe words above quoted signify merely a court which has jurisdictionto try the class of offences, in the course of the trial of one of whichan irregularity has been committed. I am unable to interpret thewords in that way. I think that when the Legislature made useof the words “ no judgment passed by a court of competent juris-diction,” it must have meant a court which had jurisdiction to passthe particular judgment brought up in appeal or revision. In thepresent case,, in view of the express terms of section 18 of theCriminal Procedure Code, the District Judge had no jurisdiction inthat sense at all. He was incompetent to pry the case, and there-fore section 425 of the Code cannot apply. , I have consulted thedecisions on this point under the corresponding section of theIndian Code of Criminal Procedure, and I find that it has beenconstrued in the same sense by the High Court of Calcutta. It washeld in the case to which I refer that where there is a personaldisqualification of any Judge from trying a particular case, underprovisions corresponding in substance to section 18 of the CriminalProcedure Code, the defect cannot be cured under the section ofthe Indian Criminal Procedure Code corresponding to section 425of our own Code. The Indian section corresponding to section 18of our Criminal Procedure Code is section 487, and the case that I
have referred to is Sudhama Upadhya v. Queen Empress? I desireto quote a few words from the concluding portion of the judgmentin that case-: “ The saving provisions,” said the Court, M of section537 ” (which is the section corresponding to section 425) " extendonly to the orders and so forth of courts of competent jurisdiction ;and in our opinion a Magistrate who, in consequence of a personaldisqualification is forbidden by law to try a particular case, thoughhe may be authorized generally to try cases of the same class,cannot be said with respect to that case to be a court of competentjurisdiction.” I set aside the conviction and sentence complainedof, and send the case back for a new trial, which must take placebefore another District Judge.
June S, t ft It
WoodRenton J.
The King v.UniervgrJta
Sent back.