099-NLR-NLR-V-19-VYRAMUTTU-v.-DURAISAMY-et-al.pdf
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Present : Wood Renton O.J. and Shaw J.
YYRAMUTTU v. BURAISAMY et ah
257—D.C. (Grim.) Colombo, 4486.
Merchandise Marks Ordinance, 1888—Trial of accused before DistrictCourt must be on indictment.
. A District Court has no jurisdiction to hear a charge under theMerchandise Marks Ordinance, 1838, unless the charge is broughtbefore it on an indictment after a non-summary inquiry in theusual way.
fjp HE facts appear from the judgment.
M. de Saram, for complainant, appellant.—The learned DistrictJuftge was bound to follow the decisions reported in 3 C. L. B. 83anA 1 N. L. R. 92. These decisions have been followed ever since.The Merchandise Marks Ordinance confers a special jurisdictionon'the District Court, which is not controlled by the provisions ofthe Criminal Procedure Code.
Arulanandan, for accused, respondents.—The Merchandise Marks■ Ordinance gives an accused the privilege of being tried by the. District- Court with all the safeguards generally attaching to sucha trial. If the contention of the complainant is upheld, all thesesafeguards will be nullified. In 3 C. L. B,. 83 Withers J. does notconsider the effect of the Criminal Procedure Code. In 1 N. L. B. 92there was at least an indictment presented by the Attorney-G-eneral.In the present case there is none. A private advocate prosecutedin the District Court. The provisions of section 12 of the CriminalProcedure Code of 1898 are clear and conclusive. 3 C. L. B. 83has been wrongly decided, and ought not to be followed.
January 20, 1917. Wood Renton C.J.—
1 referred this ^case to a Bench of two Judges, in view of thedecisions of Withers J. in Spicer v. Vaiyapuri1 and Browne J. in.Queen v. Vaiyapuri.2 The accused were charged in the Police Courtof Colombo with certain offences under the Merchandise MarksOrdinance, 1888.3 When they appeared, they exercised theelection given to them by section 3, sub-section (5), of the Ordinanceto be tried by the District Court instead of by the Police Court.The Police Magistrate thereupon, without taking non-summaryproceedings, forwarded the record to the Additional District Courtof Colombo. The learned Additional District Judge held that he had
i (1894) 3 C. L. B. 83.* (1895) 1 N. L. B. 92.
« No. 13 of 1888.
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1617.no jurisdiction to hear the case, unless it was brought before him on
Woodan indictment after a non-summary inquiry in the usual way, and
Rkntckn C.J. he accordingly discharged the aecused. The complainant appeals,VyramuUu with the sanction of the Solicitor-General. In the two decisionsv. Duraieamy above mentioned it was held that where a person charged withoffences against the provisions of the Merchandise lyiarks Ordinance.
elects under sectiop 3, sub-section (5), to be tried by theDistrict Court, the Police Magistrate is at once functus officio, andhas no power to take non-summary proceedings. This ruling is.primd facie, contrary to the provisions of section 12 of the CriminalProcedure Code, which enacts, that “ No District Court shall takecognizance of any offence unless the accused person has beencommitted for trial by a Police Court duly empowered in thatbehalf, or unless the case has been transferred to it from some otherCourt for trial by order of the Supreme Court." But it is sought tobe supported by the language of section 4 of the Criminal ProcedureCode, which enacts that " All offences under' the Penal Code shallbe inquired into and tried according to the provisions hereinaftercontained; and all offences under any other law shall be inquiredinto and tried accordingly to the same provisions, subject howeverto any enactment for the time being in force regulating the manneror place of inquiring into or trying such offences." The answer tothis argument, however, appears to me to be that section .3, – sub-section (5), of the Merchandise Marks Ordinance, 1888,1 does notprescribe the " manner ” in which a case is to be dealt with where theperson charged elects to be tried by the District Court. It merelyconfers upon him the right of election, and provides that, wherethat right has been exercised, it shall be effectuated by trial in theDistrict Court. There is nothing in the Ordinance that can be saidto create any special procedure in such cases, and I am clearly ofopinion that the District Judge is right in holding that effect mustbe given to section 12 of the Criminal Procedure Code by the adoptionof non-summary proceedings.
It would seem that the practice in the District Court in suchcases as the present has been based on the rulings of Withers J. inSpicer v. Vaiyapuri 2 and Browne J. in Queen v. Vaiyapuri, 3 althoughit is noteworthy that Mr. Joseph Grenier, who was then DistrictJudge of Colombo, while holding himself bound by the former ofthese decisions, indicated that he did not agree with it. But nowthat the point has come up formally for determination, the lawought, in my opinion, to be declared in accordance with the view of thelearned Additional District Judge in the decision now under appeal.
The appeal must be dismissed.
Shaw J-—I entirely agree.
Appeal dismissed.
J Nq. 13 of 1888.3 (1894) 3 C. L. J*. 88.
a (1895) 1 N. L. R. 92.