MOSELEY A-C.J.—Wickremesinghe and Fay.
1943Present: Moseley A.C.J.
-WICKREMESINGHE, Appellant, and FAY, Respondent.
M.C. Badulla, 8,074.
Revision—Attorney-General’s refusal to sanction appeal—Application to revise—Heavy onus on application—Magistrate’s decision to try a case summarily—Reasons—Criminal Procedure Code, s. 152 (3).
1 Where a Magistrate exercises his power to try a case summarily undersection 152 (3) of the Criminal Procedure Code, the exercise of the powermay be justified on the ground that the facts are simple.
A heavy onus rests, upon an applicant who moves to revise a case,when the Attorney-General has refused to sanction an appeal. It isincumbent upon him to make out a strong case amounting to positivemiscarriage of justice in regard to. either the law or the Judge’s apprecia-tion of the facts.,
Jl HIS was an application for revision by the complainant.
N.kadarajah, K.C. (with him C. S. Barr Kumarakulasingham and
H. W. Jayewardene), for the complainant, petitioner.
H. V. Perera, K.C, (with him E. F. N. Gratiaen), for the accused,
Cur. ad'v. vult.
June 9, 1943. jMoseley A.C.J.—
The accused-respondent was charged on the following counts’: —
(1) criminal trespass, punishable under section 434 of the Penal Code ;
MOSELEY A.C.J.—Wickremesinghe and^Fay.
assaulting a public servant in the execution of his duty, punishable
under section 344;
simple hurt, punishable under section 314 ;
grievous hurt, punishable under section 324.
The respondent was acquitted. The petitioner applied to the Attorney-General to sanction an appeal. The application was refused. He nowmoves this Court to exercise its powers in revision. It is not disputedthat the Supreme Court has the power of revision, in a proper case,notwithstanding the refusal of the Attorney-General to sanction anappeal.
The petitioner bases his application on a point of law as well as on thefacts, in respect of which it is contended as well that the learned Magis-trate misdirected himself. I may say at once that in regard to the factsand the alleged misdirection, a very strong case would, in my opinion,have to be made out before this Court would, in such circumstances asthese, set aside an order of acquittal and order a new trial. In The Kingv. Noordeen et al. Wood Renton J. expressed his opiniQn that “ a veryheavy onus rests upon the applicant who comes before the Supreme Court,for the purpose of inviting it in effect to override the deliberate refusal ofthe Attorney-General to sanction an appeal. It is incumbent upon him,I should say, to make out a strong case amounting to positive miscarriageof justice in regard to either the law or the Judge’s appreciation of thefacts”. I respectfully associate myself with that view and I am unableto find that the petitioner, as far as the facts are concerned, has shownthat there lias been a miscarriage of justice.
The point remaining for consideration is in regard to the assumption bythe learned Magistrate of his powers as District Judge. There were, inthe first place, only three charges, viz., Nos. 1, 2, and 3 pressed against theaccused. After the medical evidence and that of the petitioner hadbeen recorded, the latter’s Counsel moved to add count No. 4. Thischarge is in respect of an offence punishable only by a District Court.Up to that point the proceedings had been summary, and there were nowtwo courses open to the Magistrate. He could commence non-summaryproceedings or, since he is also a District Judge, could, if he was of opinionthat the offence might be tried summarily, so try it as provided bysection 152 (3) of the Criminal Procedure Code. He decided upon thelatter course, making this note:—“… I will try it as D. J. ”,
and proceeded to do so.
Learned Counsel for the petitioner contends that, in view of the complexnature of the offence alleged in the added count, it was not a proper casefor summary trial. I do not find any substance in this contention.There is no more complexity in the fourth charge than there is in thesecond which admittedly is triable summarily by a Magistrate. Thefurther objection is taken that the Magistrate, in assuming jurisdictionunder section 152 (3) has not stated his reasons adequately. The notemade by the learned Magistrate in this connection is’ on the printed formwhich is provided to meet the case of a summary trial by a Magistratewho is also a District Judge, and on this form the Magistrate has expressed
1 13 A L. B. 113.
370 'HOWARD C.J.—The King v. M. H. Amolis.
his opinion that the ease may properly be tried summarily for the followingreasons :—“ The facts are simple and the case can be dealt with expediti-ously In Silva v. Silva de Sampayo J. observed: “ It is not enoughfor the Police Magistrate to form the opinion that the offence may betried summarily by him, but he must record the reasons for his opinion. ”In S.’ C. No. 742-757'—P. C. Negombo, 23,5063, it was held that theimportance of dealing with cases of this description promptly is notby itself a good reason, but Wood-Renton C.J, added: “ The exerciseof the power can be justified upon another ground, namely, that in spiteof the number of the accused, the case is essentially a simple one.” Inthe present case the learned Magistrate has given the same additionalreason, namely, that the facts are simple. As may be gathered frommy previous observations, I am in agreement with that opinion. Itseems to me, therefore, that the applicant has failed in discharging theburden cast upon him, namely, to make out a strong case amountingto a positive miscarriage of justice in regard to either the law or the facts.The application is' therefore dismissed.