031-NLR-NLR-V-04-NORMAN-V.-PERERA.pdf
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NORMAN v. PERERA.P.C., Colombo, 65,600.
Mandamus on Police Magistrate—Right of appeal—In what circumstances these
remedies are available—Criminal Procedure Code, s. 337.
Under section 337 of the Criminal Procedure Code, two courses areopen where a Police Magistrate has refused to issue process: one anapplication to the Supreme Court for a mandamus, and the other anappeal at the instance or with the written sanction of the Attorney-General.
These remedies are not co-extensive, but apply to two different classesof cases.
Mandamus may issue where a Magistrate has refused to exercise juris-diction ; but where he has exercised jurisdiction and decided that heought not to grant a summons, the proper remedy is an appeal.
J. C. Pereira, for complainant, read the following affidavit,and moved the Supreme Court for a rule on the Police Magistrateof Colombo to show cause why a mandamus should not issueupon him compelling to proceed with the above-mentioned caseagainst the accused.
The affidavit was as follows:—
John Coham Norman, of Colombo, make oath and say—
I am the Manager of the Orient Company, Limited, inColombo.
1900.July 16.
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1800.(2) The Fiscal of Colombo, under an order of the District Court
July 16. 0f Colombo made in case No. 13,327, placed the Orient Company,Limited, in possession of the house No. 65, Jampettah street,Colombo, on the 23rd June, 1900, and I, as their Manager, placedwatchers in charge of the said house, and they remained inpossession on the Company's behalf till 25th June, 1900.
As will appear from the evidence of Clement HenryCannon (one of the said watchers) recorded in Police Court caseNo. 65,600, a certified copy of which is hereto annexed markedA, three men, Juanis Appu, James Perera, and another, whosename 1 have not been able to ascertain, entered the said house,which was then in the legal possession of the Orient Company,Limited, with intent to insult and annoy the person in possessio'ndf such property, and I am informed assaulted the said ClementHenry Cannon and stole his box.
I charged the said Juanis Appu, James Perera, and anotherbefore the Police Magistrate of Colombo on the 12th July, 1900,with criminal house trespass, assault, and theft; but the Magistrate,after recording a small portion of my evidence and that ofClement Henry Cannon, declined ta proceed with the case, aswill appear from the record in the said Police Court case, andcertified copy thereof hereto annexed.
Bonser, C.J.—
This is an application under section 337 of the CriminalProcedure Code, which provides that—“ where a Police Court“ has refused to issue process a mandamus shall lie to compel such“ Court to issue such process, but there shall be no appeal against“ such refusal, except at the instance or with the written sanction“ of the Attorney-General.” Here the person applying for amandamus alleges that he complained to the Police Magistrate ofColombo against three persons, that they had committed criminaltrespass upon premises in his occupation. The Magistrateexamined the complainant and also one of his witnesses, and thendeclined to issue process, endorsing on the record the words,“ No ease. A matter for a civil action. I decline to proceed. ” Theapplicant urges that the Magistrate did not examine him and hiswitness with that minuteness which he ought to have used, andthat if the Magistrate had examined himseTf and his witness morecarefully, he would have come to a different conclusion. Iunderstand him also to say that the Magistrate was wrong on thefacts before him, and that he ought to have come to the conclusionthat a criminal offence was disclosed and issued process. It
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would seem that under section 337 there are two courses whichmay be taken in a case where the Magistrate refuses to issueprocess: one is an application to this Court for a mandamus, andthe other is an appeal “ at the instance or with the written sanc-tion of the Attorney-General.” The counsel for the applicantsays that these remedies are co-extensive, and that in every casethe complainant has the choice as to which of these remedies hewill select. I am not able to agree with that view. It Beems tome that the two remedies are not co-extensive, but that theyapply to two different cases. It must be remembered'that thisremedy by way of mandtmus to compel a Magistrate . to issueprocess is not a new remedy created by the Criminal ProcedureCode of 1898. It existed before the Code- In the CriminalProcedure Code of 1883 there was no reference to this remedy ofmandamus; but this Court acted upon the powers given to it bysection 48 of “ The Courts Ordinance, 1889,” which provides thatit shall have full power and authority, to grant and issue accordingto law mandates in the nature of writs of – mandamus against , anyMagistrate. Now, it is well known that, although in .civil, mattersthe Roman-Dutch-Law is the,Common Law of this Island, yet incriminal matters the Law of England has always been adopted byour Courts of Justice as regulating their procedure. And that isexpressly recognized by the Criminal Procedure Code of 1898,which provides (seotion 6) that ” as regards matters of Criminal“ Procedure for which no special provision may have been made“ by this Code or by any other law for the time being in .force in“ this Island,, the law relating to Criminal Procedure for the time
" being in force in England shall be applied ”Now, these
writs of mandamus are well known in English Criminal Law; andit seems to me that we ought to follow the practice of EnglishCourts as regards the principles on which they ought to be issued.The English rule is that the writ issues in a case where a Magistratehas refused to exercise jurisdiction. But where the Magistratehas exercised jurisdiction and brought his mind to bear upon thecase, and decided that he ought not to grant summons, the Courtof Queen’s Bench will not interfere by way of mandamus (seeEx parte Lewis, 21 Q. B. D. 191). That distinction was pointedout by my predecessor in this chair in the case reported in 7 S. C. G.201. In the present case the Magistrate has exercised hisdiscretion, and, after examining the complainant and his witness,has deliberately come to the conclusion that there was no casefor a criminal prosecution. If the Magistrate is wrong, the errorcan be corrected on appeal.
The application is refused.
1900.
July 16.
Bonseb, C.J.