112 WIJEYEWARDENE C.J.—Vadivtiu v. Inspector of Police, Badulla
1949Present: Wijeyewardene C.J. and Gun&sekara J.VADIVELU, Appellant, and INSPECTOR OK POLICE,BADULLA, Respondent
8. C. 1,236—M. C. Badulla, 6,043
Criminal Procedure Code—Charge of housebreaking and theft—Whether triablesummarily—Section 1S2 (3)—Penal Code, sections 440, 443, 369.
A charge of housebreaking and theft may bo tried summarily by aMagistrate under the powers conferred on him by section 152 (3) of the' Criminal Procedure Code ; but the Magistrate should, of course, decidewhetheritis “proper” for him to exorcise that jurisdiction in the parti-cular oaee before him.
AA.PPEAL from a judgment of the Magistrate, Badulla.
This appeal was referred to a Bench of two Judges by Dias J.
8. Nadesan, for accused appellant.
S. A. Wijemanne, Crown Counsel, with 8. Wijesinha, Crown Counsel,for the Attorney-General.
Cur. adv. vuU.
June 16, 1949. Wijeyewardene C.J.—
The acoused appeals from a conviction under section 443 of the PenalCode and a sentence of two months’ rigorous imprisonment.
This appeal oomos before a Bonch of two Judges on a reference madeby my brother Dias in the following terms :—
“ I think this case should be decided by a Bonch of two Judges
“ The question is whether a charge of house breaking and theft,
namely sections 443 and 369 or under sections 440 and 369 maysummarily be tried by a Magistrate under the powers conferredon him by section 152 (3) of the Criminal Procodure Code
11 In. this case the Magistrate assumed jurisdiction before any
evidence was led and the case therefore falls within the principle'(1924) IK. B.17J.
WUEYEWARDENE C.J.— Vadivdu v. Inspector oj Police, Bululla 113
laid down by my brother Nagalingam in the case of Kandiaket al. v. D. R. 0. of PaUail. On the other hand there is myjudgment in Pancha v. Veloo * where I came to a differentconclusion after citing a number of authorities
I have numbered the various paragraphs (or facility of reference.The question propounded in paragraph 2 has to be answered in the.-affirmative in view of the language of section 152 (3) of the CriminalProcedure Code which enacts:—
“ Where the offence appears to be one triable by a District Courtand not summarily by a Magistrate's Court and the Magistrate beingalso a District Judge having jurisdiction to try the offence is of opinionthat such offence may properly be tried summarily he may try thesame summarily. …”.
Such a Magistrate has, therefore, tho jurisdiction to try an offence ofthat nature but, of course, he has to decide whether it is “ proper ” forhim to exercise that jurisdiction in the particular case before him.
I have read carefully the judgments in Kandiak et al. v. D. R. 0. ofPallai (supra) and Pancha v. Veloo (vupra) mentioned in paragraph 2.
In the former ease the Magistrate assumed jurisdiction stating “ thatthe facts were simple and no complicated questions of law or fact wereinvolved He made that statement at a time when be had “ nomaterial before him excepting the written report itsolf ”. Pointingout these facts Nagalingam J. observed that “ the serious nature of thecharge is in itself an. important factor which must not be lost sight of ”in deciding whether the case may be properly tried under section 152 (3).He proceeded to examine the charge and the sentences passed and thenremarked that in the circumstances of that casc the Magistrate shouldhave “ hesitated ” to try the case summarily. In that ease nine personswero charged with being members of an unlawful assembly with intentto commit robbery. There were six other charges one of which referredto robbery of Rs. 617. The sentences passed on each of the accusedaggregated to four years’ rigorous imprisonment.
Tn Pancha v. Veloo (supra) one accused was charged with housebreakingand theft and sentenced to six months’ rigorous imprisonment. Theonly point taken in appeal wras “ that the Magistrate should have takennon summary proceedings ”. Dias «T. referred to a number of authoritiesand then said,
“ I think the point of law fails. I have read through the proceedingsand can find no sufficient ground for setting aside these proceedingsand sending the case back for non summary proceedings ’ ’.
I am unable to read these two judgments as being in conflict witheach other. They were concerned with the question of fact whetherany particular casc could “ properly ” be tried summarily.
In accordance with the view expressed by Dias J. in paragraph 1that this case should be decided by a Bench of two Judges we permittedCounsol to argue the entire appeal before us.
1 (1948) 49 AT. L. R. 503.
» (1946) 47 N. L. R. 567.
WIJEYEWARDENK C.J.— V'tdivelu v. Inspector of Police, Badulla
The proceedings commenced with a written report filed by a PoliceOfficer on April 8, 1948, oharging the accused witli the offence of house-breaking by night with intent to commit theft. The case was calledbefore the Magistrate on April 12. Without recording any evidence, theMagistrate decided to try the case under section 152 (3), a9 he thought it“ expeditious ” to do so.
The main evidence for the prosecution was given by one Serasinghe,a junior Assistant Tea Maker of St. James’ Estate, Hali-Ela, where theaccused was employed as a labourer. He said :—
“I was on night duty, my hours being 4.30 p.m. to 12.30 a.m.I went to the sifting room of the factory about 7 p.m. to check up thewindows and the padlocks on the bin boxes. I then weut into thenailing room. I saw a bundle of sacks near a bin box. I tried tocheck up the padlock of the bin box when I saw the sacks moving.[ called out, There was no answer. I shouted out there was arogue. The rogue jumped on oie …. He had a kris knife in
his hand, I struggled with him …. The key was in thepadlock and the padlock was on the frame of the bin box. The padlockwas open. The keys of the bin boxes and the key of the nailing roomdoor and the other keys are in my charge till firing is over (i.e., after7.15 p.m.) …. 1 told the Police I was injured with a krisknife …. AH the keys are kept in a steel trunk in the office.This trunk is not closed. When the firing is over the steel trunk issent to the Head Tea Maker’s Bungalow and he brings it with himin the morning at 6. I gave the accused a few blows ”.
The other witnesses for the prosecution were Thomas, a watcher,Vidane, an Engine driver, and Fernando, the Tea Maker. The firsttwo witnesses came to the sifting room on hearing the cries of Serasingheand the third, on receiving a message from him. On arriving at thesifting room Vidane and Fernando found it desirable to give “ a fewblows ” to the accused. So did Serasinghe. Even Mr. dc Mel, theAssistant Superintendent who came after the Tea Maker could not helpgiving “ a few blows
Now the defence in the case is that this is a false charge engineeredby the Tea Maker who was annoyed at the accused telling the otherlabourers a few days earlier that the Head Tea Maker took some teachests with him when he went on leave ”. Tho accused suggested thatthe other witnesses, excluding Mr. de Mel, were induced by the Tea Makerto help him in making the charge. He said :—
“ Piyadasa came to my line room and told mo that the Head TeaMaker wanted me. I then went along to the Head Tea Maker’sBungalow'. The Head Tea Maker asked me to go to tho Factoryand bring a bulb …. I went to the Factory packing (nailing)room. Mr. Serasinghe the Asistant Tea Maker was there. I askedhim for a bulb. He then took me into a room adjoining the packingroom. Mr. Serasinghe then seized my hand and raised cries. ThenVidane, Piyadasa and Thomas came up … . They assaulted mosaying that I had come there to commit theft. About five or tenminutes later the Head Tea Maker came there. He remarked, * you
WjJBYEVVARDEtfE C.J.—Vadivelu v. Inspector oj Police, Badvtta
have said that I was a thief; now you have become a thief ThenMr. de Mel came. He assaulted rae. He asked me why I came thereto commit theft. I told him that I did not come there to committheft. I said that it was the Head Tea Maker who did all this ”.
I have no doubt that the accused made the accusation against theTea Maker on the arrival of Mr.de Mel. Mr. do Mel himself said in hisevidence:—
“ After I struck him (the accused) he spoke. He answered in Tamilwhich I cannot recollect. He said something to the effect that he andthe Tea Maker committed this offence
We have been seriously handicapped by the failure of the prosecutionto produce a sketch showing the positions of the sifting room, the nailingroom and the office and the possible moans of access which the accusedhad to the nailing room so as to go and conceal himself near the bin boxwithout being observed by Scrasinghe who was all the while in thesifting room. If the Magistrate had taken non summary proceedingsit is most likely that the prosecuting department would have instructedthe Magistrate to call for such a sketch before the accused was asked tostand his trial in a higher Court.
There is moreover an air of unreality about the case for the prosecution.The accused has been employed on the estate for over thirteen years.Hf has been working in the nailing room itself for a number of years.Ho must have been well awaro of the fact that the Assistant Tea Makerwent usually to the sifting room shortly after 7 p.m. “ to check up thewindows and the padlocks in the bin boxes ". And yet it is suggestedthat the accused opened the padlock with a key stolen from the stool trunkand kept the key in. the padlock, though he knew well that Serasinghcwould inspect the padlock in tho course of his duty and close it. If thiswas what happened, it looks as if the accused kept the key in the pad-lock for the express purpose of rousing the suspicion of the Tea Maker.Though Serasinghc is said to have received an injury at the hands of theAccused, he did not choose to show his injury to the Police Constable buton'y showed the bandage covering the alleged injury. Moreover, thesuccessive attacks made by the various Crown witnesses on the accusedseem to me to be indicative more of revenge for a personal wrong thanof anger at the attempted theft of estate property.
I am of opinion that the Magistrate who desired to try the case “ ex-peditiously ” has not paid sufficient attention to all these matters. Thequestion that caused me some anxiety was whethor I should acquit theaccused or quash the proceedings and send the case back for non-summary inquiry, but, in view of the fact that more than a year haspassed since the alleged commission of the offence and the accused hasbeen put to a great doal of expense already, I think the accused shouldbe spared the anxiety and expenses of fresh proceedings.
I allow the appeal and acquit the accused.
Gunasekaba J.—I agree.
VADIVELU, Appellant, and INSPECTOR OF POLICE BADULLA ,Respondent