054-NLR-NLR-V-72-W.-JOSEPH-Appellant-and-F.-A.-WOOTLER-S.-I.-Poilce-Respondnet.pdf
t)E ItRETSER, j.—Joseph v. iVootier
213
1969Present:de Kretser J.
W.JOSEPH, Appellant, and F. A. WOOTLER (S. I. Police),
Respondent
,S. C. 140169—31. C. Dambulla, 15,776
Criminal Procedure Code—Section 162 (3)—Trial before Magistrate's Court—Joinderof a charge reluting to on offence summarily triable with a charge relating to anindictable offence—Failure of Magistrate to assume jurisdiction under s. 162 (3)—Effect—Penal Code, ss. 219, 323.
Two offences were alleged to have been committed by the accused-appellantin the course of the same transaction. One of them was triable summarily andthe other was triable only by a District Judge. The Magistrate, who was alsoDistrict Judge, convicted the appellant of both offences without assumingjurisdiction under section l52_f3)_of_ the_Qriminal^Procedure Code.
Held, in appeal, that it was permissible to separate the illegal trial of theindictable offence and sustain the conviction on the remaining summarilytriable count. In such a case it cannot be contended that the entiro-trial isvitiated by reason of the failure of the Magistrate to assume jurisdiction undersection 152 (3) of the Criminal Procedure Code.
Ramaswamy v. Gunaratne (72 Isf. L. R. 187) not followed.
.A. PPEAL from a judgment of the Magistrate’s Court, Dambulla.V. Karalasingham, for the accused-appellant.
Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 11, 1969. de Kretsek, J.—
The Magistrate of Dambulla (Sir. Siva Selliah) convicted the appellanton 15.1.68 on charges framed against him : (1) That he had voluntarilycaused hurt to P.C. Wimal a Public Servant in the discharge of his duty,an offence punishable under section 323 of the Penal Code. (2) That hohad offered resistance to his lawful apprehension by S.I. Wootler andP.C. Wimal an offence punishable under section 220A of the PenalCode.
Counsel for the appellant submitted and Counsel for the Crown agreedthat the charge under section 220A was triable only by a District Judgeand as the Magistrate had not assumed jurisdiction as D.J. in terms ofsection 152 (3) of the Criminal Procedure Code the conviction was bad inlaw. Ho further submitted and Crown Counsel agreed with him that thefailure of the Magistrate to assume jurisdiction on the charge under 220Avitiated the conviction under section 323 as well which was otherwise
i)j? KRETSER, j.—Joseph, v. Wooller
514
triable by a Magistrate summarily. ' He relied for this proposition on thecase of Ramasamy v. Gunaratne1 decided by Pandita Gunawardene J. saidPandita Gunawardene J., ‘‘The question to which I have to address mj'selfis whether it is permissible for me to quash the conviction and sentencebn count 3 and proceed to consider the remaining counts which arc
properly triable by the MagistrateNeither the researches of Counsel
nor my own into this aspect of the matter has resulted in the discoveryof any authority for the proposition that in circumstances such as arepresent here it is permissible to separate the illegal trial of the offenceunder count 3 and consider the remaining summarily triable counts. Itwould appear that the basic principle which militates against such ais that the trial course by the Magistrate must tbe treated as one trialand not as separate trials in respect of separate offences which havebeen joined together under section 180 (1) as forming part of the sametransaction.”
It would appear a pity that the joint research of all concerned failed todiscover the case of the Kin// v. Jayasinghe 2 in which Ennis J., heldthat a Police Magistrate may in the same case, exercise jurisdictionfor the trial of one offence as Magistrate and for the trial of anotheroffence under section 152 of the Cr. P. C. Apart from the authorityof the King v. J ayasinghe 2, with great respect I find myself unable toagree with the reasoning in Ramasamy v. Gunaratne1. For whileit is true that there is one trial in the sense of one proceeding it appearsto have lost sight of the fact that the accused was being tried forseveral offences which the law allows to be tried in the same proceedingin terms of the chapter on the Joinder of Charges in the CriminalProcedure Code.
At one stage there was doubt whether where an accused was chargedin the same proceedings with several offences somo of which were triablesummarily by the Magistrate’s Court and others wore not it was possibleto make use of section 152 (3) at all, and that if the Magistrate gavehimself jurisdiction under that section a conviction for all or anyof the – offences was wholly bad. These doubts were removed bythe decision of the Full Bench in Mardor Lebbc v. Kiri Banda3which hold there is no objection-.to a Magistrate applying section152 (3) to a case where an accused is charged with several offences,somo of which are triable by the Magistrate’s Court and others arc notprovided he inflicts no higher -punishment in respect of the lower offencesthan he has ordinary jurisdiction to impose. The words I have underlinedin ray viow clearly point to the recognition of the fact that the Magis-trate’s jurisdiction in regard to offences which ho could try as Magistratealways remains and was in no way affected by tho assumption of higherpunitive powers assumed under section 152(3) in regard to an offence nototherwiso triable by him which he. found convenient by this device to tryin Hie same proceeding. Equally the failuro to assume higher punitive
1 (MGS) 72 X. L. Ji. I S7 ; 7o C. L. W. 8-5. '1 (10 Jo) IS X. L. R. 374.
(19Id) IS X. L. R. 37G.
3
215
DE KJRETSER, J.—Joseph r. If oo/ler
poAvcra in regard to offences not summarily triable by him could not inany way affect the trial of offences he had the right to try and had triedsummarily in the same proceeding. It is useful to note what DeSampayo J., said in a case now to be found at page 379 of18 N. L. 11.“ Misleading language is often employed to describe the
nature of the proceedings authorised by section 152 (3). The PoliceMagistrate, for instance, is said ‘to act as District Judge’, but this iswholly incorrect. The Police Magistrate acts and can only, act as PoliceMagistrate, the only difference being that, being also a District Judge, hehas power to impose a sentence which ordinarily a District Judge may
imposeThe wrong application of section 152(3) involves a mere
irregularity.” It would appear to me that not making use of section152 (3) would also be no more than an irregularity which would needsetting right by the Supreme Court in revision in regard to the offence inreference to which tho Magistrate should have assumed those powers ifhe dealt with it. For these reasons I have not the slightest doubt inaffirming the conviction imdcr section 323~in the instant- case-which theMagistrate was competent to try and in regard to which I see no blemishin the Magistrate’s finding of fact. But I am of the view that thesubmission of Counsel for the appellant with which Crown Counselagreed, that a charge under 220A can only be tried as District Judge,is not correct. The confusion appears to have arisen as a result of whatshould have been a charge under section 219 of the Penal Code beingwrongly laid under section 220A.
In order to see whether a Magistrate has the right to try a chargo undersection 220A one must consult the first schedule to the Cr. P. C. and indoing so one finds that the offence under section 220A is triable in theDistrict Court as well as in the Magistrate’s Court and the maximumsentence is six months’ R. I. or a fine. If a Magistrate has jurisdictionto try a charge summarily he could not under section 152 (3) assumejurisdiction to punish it more severely, vide the King v. Jayasinghe18 N. L. R. at page 374. So that if the charge was correctly laid undersection 220A I am of the view that the Magistrate was right when hedecided that he had correctly tried the charge summarily. But itappears a pity that the very cruditj' with which the charge is set out inthe Charge Sheet did not make him look into'thc question whether therewas in fact a charge made out under section 220A which was enacted tocover the cases not provided for under sections 219, 219A, and 220 of thePenal Code, e.g, a case where the lawful apprehension was not for anoffence but for any other purpose. A perusal of the facts appears to meto indicate that the charge against the accused was wrongly laid underthis section. The evidence of S.I. Wootler that he explained the charge(presumably the charges of House-breaking and Robbery) to the accusedwho in spite of his doing so offered resistance to his apprehension appearsto point to an offence, if any, under 219 and of course if the offence wasunder 219 it would be column 8 of the First Schedule of the Cr. P. C. asSoertsz J., pointed out in Uparis v. The Police 1 which would determine
* {1946) 47 X. L. R. 37S.
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DE KRETSER, J.—Joseph v. Wootler
^he jurisdiction of the Court. A reference to column S shows that theMagistrate could not try this offience if the person resisting lawful appre-hension had been charged with an offence not cognisable by the Magis-trate’s Court. -In the instant case on the scanty evidence led on thisaspect of the matter the offence appears to be House-breaking by nightand Robbery of guns over Rs. 500 in value, so that the offence wouldappear to be under section 219 and triable by the District Court. Theconviction under 220A is set aside by me for the reason that the chargeshould not have been laid under that section. I do not direct that thecase should go back to the Magistrate either to take non-summaryproceedings or to act under section 152 (3) for in my view thepunishment imposed by the Magistrate for the offence under section323 plus the punishment imposed under the Prevention of CrimesOrdinance appears to bo adequate in a case in which the offences havehappened in the same transaction and largely turn on the same facts.
The appeal of the accused is allowed from the conviction under section220A. The appeal is dismissed in regard to the conviction and sentenceunder 323 and section 6 of the Prevention of Crimes Ordinance.
Appeal partly allowed..