009-nlr-nlr-v-03-in-the-matter-of-the-application-for-revision-of-the-proceedings-in-case-no-528

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In the Matter of the Application for Revision of the Proceedings
in
case No. 528, P. C, Kalmunai.
Jurisdiction—Non-summary charge-—-Fixing for trial under Ordinance
No. 8 of 1896—Order of committal.
W h e r e one Police Magistrate inquired into a non-summary charge
and sent the case to the Attorney-General for instructions, and the
Attorney-General remitted the case t o the Police Court w i t h
directions for committal of the accused—Held, it was n o t c o m ­
petent to another Magistrate of the same Court w h o was also
District Judge to take the case u p and make order fixing it for trial
before himself as District Judge under Ordinance N o . 8 of 1896.
HE facts of the case appear in the judgment of Withers, J.
Wendt, Acting S.-G., for the Crown.
2nd August, 1897. W I T H E R S , J.—
The Acting Solicitor-General has brought to my notice the
order of Mr. Dunlop, District Judge of Batticaloa, in the case of
Sinna PiUai v. Kandan and two others in Police Court, Batticaloa,
sitting at Kalmunai, No. 528, and he has asked me to examine the
record for the purpose of satisfying myself as to the legality or
propriety of the order made therein by Mr. Dunlop. The accused
1897.
August 2.
V O L . in. 12(56)29
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1 8 9 7 . were charged with voluntarily causing grievous burt to Sinna Pillai
August 2. before Mr. Byrde, the Additional Police Magistrate of Batticaloa.
W I T H E R S , J. After taking evidence he forwarded the rase for the instructions
of the Attorney-General. He was directed, I am informed, to
commit the third accused for trial before the District Court of
Batticaloa.
When the record was sent back to the Court below with these
instructions it seems that Mr. Byrde was absent from the station,
and on the 19th of July, 1897, the prosecutor and the parties
accused appeared before Mr. Dunlop at Kalmunai.
In looking into the matter Mr. Dunlop came to the conclusion
that he could not commit for trial without hearing at least some
part of the evidence, and if he did commit the accused to stand
their trial before the District Court he could not try them. The
best way out of the difficulty he thought was to take the case up
under Ordinance No. 8 of 1896, and consequently he fixed a day for
the trial of the case before himself as District Judge of Batticaloa.
The chief question I have to decide is whether the last order is
a legal and proper order under the circumstances. In my opinion
it is not. If there had been no previous inquiry into the offence
by another Magistrate it would of course have been competent
for Mr. Dunlop without any commitment to hear, try, and determine it, for it is an offence which is not summarily triable, but
one which the District Court had j urisdiction to try.
I therefore quash that order and direct the record to be sent to
Mr. Byrde, who will carry out the instructions of the AttorneyGeneral and commit the accused to stand their trial before the
District Court of Batticaloa.
This order cannot possibly prejudice the accused, for they will
have the advantage of being tried by Mr. Byrde, District Judge of
Batticaloa.
In ordering cases I should naturally ask the Judge to send up
the record with his observations, and I should give notice to the
accused so that they might have an opportunity of being heard
either in person or by pleader.
As I think it rather advantageous than prejudicial to the accused
to make an instant order, I do so.