056-NLR-NLR-V-42-VANDERSTRAATEN-v.-MRS-N.-M.-PERERA-et-al.pdf
232
Vanderstraaten v. Mrs. N. M. Perera.
1940Present: Howard C.J.
VANDERSTRAATEN v. Mrs. N. M. PERERA et al.
697-703—M. C. Colombo, 7,930.
Police Ordinance, ss. 76 (2)'and 97 (Cap. 43)—rFailing to disperse when orderedby Police Officer—Trial by Magistrate—Absence of certificate byAttorney-General—Fatal irregularity.
.Where a charge under section 76 (2) of the Police Ordinance is triedby a Magistrate, the want of a certificate by the Attorney-General or acompetent Crown Counsel as required by section 97 of the Ordinance is afatal irregularity.
Sourjah v. Pannaloka (2 C. W. R. 133) followed.
^ PPEAL from a conviction by the Municipal Magistrate of Colombo.
H. V. Perera, K.C. (with him S. Nadesan), for the accused,'appellant,
R.G. C. Pereira, for the second accused, appellant.
J. R. Jayawardana (with him S. N. W. Wijekoon), for the fourthaccused, appellant.
S.. de Zoysa, (with him P. H. W. de Silva), for the fifth accused, appellant.N. M. de Silva, for the sixth accused, appellant.
R.N. Ilangakoon, for the seventh accused, appellant.
S.Nadesan, for the eighth accused, appellant.
J. W. R. Ilangakoon, K.p., A.-G. (with him Nihal Gunasekera, C.C.),
for the complainant, respondent.
* {1874) L. R. 7, H. L. 34S.
* 39 N. I.. R. 469.
HOWARD C-T.—V anderstaaten v. Mrs. N. M. Per era.
233
December 4, 1940. Howard C.J.—
In this case the eight accused were charged (1) with failing to dispersewhen ordered to do so by Police Officers specified in the charge andthereby committing an offence punishable under section 76 (2) of thePolice Ordinance (Cap. 43), and (2) with behaving in a riotous or dis-orderly manner on the public highway and thereby committing anoffence punishable under section 2 of the Vagrants Ordinance (Cap. 26).
Objection is taken to the first charge on the ground that the Magistratehad no jurisdiction to try such a charge by reason of the provisions ofsection 97 of Chapter 43. Section 97 is worded as follows :—“Whereasthe punishments assigned to certain offenders under this Ordinance arebeyond the jurisdiction of Magistrates’ Courts, but it would be frequentlymore advantageous that such offences should be brought to trial beforesuch Courts in order that the punishment of offenders may be moreprompt even though it should be less severe. It is therefore enacted thatin case of any person committing an offence under this Ordinance andwhich, offence could not otherwise be cognizable by a Magistrate’s Courtby reason of the punishment to which the same is subject, a certificateshall be presented to any Magistrate’s Court, signed by the Attorney-General or by some competent Crown Counsel to the effect that suchofficer is content that such offence or act shall be prosecuted before suchCourt, it shall be competent to such Court to take cognizance of suchoffence or act and to award in respect thereof so much of the punishmentassigned thereto as Magistrates’ Courts are empowered by law to award ”.There was no certificate signed by the Attorney-General or by somecompetent Crown Counsel as required by this section. The Attorney-General has argued that this is a mere technical objection, curable bysection 425 of the Criminal Procedure Code inasmuch as a competentCrown Counsel conducted the prosecution before the Magistrate. Butit is obvious that the Crown Counsel had not applied his mind to thissection, otherwise he would most certainly have mentioned to the learnedMagistrate that a certificate was required and would have undertaken toproduce one in the course of the case. It is significant, moreover, thatthe learned Magistrate had not appplied his mind to this provision becausein spite of the final words of the section he imposed a fine of Rs. 200;the maximum fine designated by section 76 (2) but one which he was notempowered by law to award. It was obvious, therefore, that neitherhe nor the Crown Counsel had addressed their minds to the provisions ofthis section. It therefore cannot be said that the objection is a meretechnical one. Moreover, it cannot be regarded as technical becausethe accused were deprived of the advantages which would accrue to themby having their case tried in a non-summary manner.
I am of opinion that this defect cannot be cured by section 425 of theCriminal Procedure Code. The Attorney-General agrees that it does notcome under paragraph (b) where the words “ of the want of any sanctionrequired by section 147 ” are employed, and obviously it cannot comeunder this paragraph inasmuch as this paragraph refers, to sanctionswith regard to certain offences under the Penal Code. He has arguedthat it does come within the words of paragraph (a) which read “ of any
234
HOWARD C.J.—Vanderstraaten v. Mrs. N. M. Perera.
error, omission or irregularity in the complaint, summons, warrant, charge,judgment or other .proceedings before or during trial or in any inquiry orother proceedings under this Code In this connection he maintainsthat such an irregularity has not occasioned a failure of justice. I am ofopinion that this irregularity is not curable under paragraph (a). If it wasso curable, the point would have been taken in the case of Sourjah v. Panna-loka1. In this case de Sampayo J. decided that the want of a certificateunder this section of the Police Ordinance cannot be cured by section 425 of.the Criminal Procedure Code because (1) the sanction there referred to isthe sanction required by section 147 and (2) because it is only the judg-ment of a Court of “ competent jurisdiction ” that can be sustained byoperation of that provision. The point was not even argued in this casethat paragraph (a) would apply. Moreover, so far as this case is concerneda Magistrate’s Court without the certificate of the Attorney-General,cannot be regarded as a Court of competent jurisdiction.
For these reasons I am. of opinion that the contention of Counsel forthe appellants that the Magistrate had no jurisdiction to try the firstcharge must prevail.
The point that now remains for consideration is whether the convictionof the Magistrate on the second charge can stand in view of the fact thathe had no jurisdiction to try the first charge. Mr. Perera has arguedthat he had no jurisdiction to try the second charge inasmuch as therewas a misjoinder of charges. He argued that a charge which a Magistratehad jurisdiction to try could not be joined with a charge which he had nojurisdiction to try. Moreover, he contends that there was a misjoinderof persons inasmuch as these eight accused were charged in one charge,whereas they were not accused of committing this offence jointly. I donot propose to decide these two points for the reason that it is clear on ascrutiny of the judgment of the learned Magistrate that he has. confinedhimself to the facts as they affected the first charge. There is no findingon his part that these accused either jointly or separately behaved in ariotous or disorderly manner on the public highway. In fact, there isnothing in the judgment to show that he had applied his mind to comingto a conclusion on the question whether the ingredients which constitutethis offence had been established by the prosecution. Therefore even if Ifind that the facts do establish the charge, I think it is more satisfactorythat there should be a re-trial.
In these circumstances I quash the convictions and sentences on bothcharges and remit the case to the Magistrate to take non-summaryproceedings. After the case has been remitted to the Magistrate, it isopen to the Attorney-General, if he sees fit, to confer jurisdiction on theMagistrate to try the case summarily under the provisions of section 97of the Police Ordinance. I need hardly say that the case must be heardby a different Magistrate.
Quashed.
' 2 c.w. R. 133.