034-NLR-NLR-V-65-DE-JONG-et-al.-Appellants-and-DEMATAGODA-POLICE-Respondent.pdf
WBERASOORIYA, J-—De Jong v. Dcmatagoda Police
166
Present: Weerasooriya, J.
DE JONG et al., Appellants, and DEMATAGODA POLICE, RespondentS. C. 1238-1242—M. C. Colombo, 30734{A
Criminal procedure—Assumption of jurisdiction to try summarily a non-summaryoffence—Procedure—Effect of change of Magistrate—Stage at which summaryjurisdiction should be assumed—Value of evidence recorded before assumptionof summary jurisdiction—Criminal Procedure Code, ss. 148 (1) (6), 152 {1),152 (3), 156.
Where there is a change of Magistrate after a Magistrate decides to hear anon-summary case summarily under section 152 (3) of the Criminal Proce-dure Code, it is not necessary that the new Magistrate should elect afresh totry the case summarily under that section.
It is not open to a Magistrate to assume summary jurisdiction under section162 (3) of the Criminal Procedure Code after non-summary proceedings havealready commenced and evidence of witnesses has been taken as part of the non-summary inquiry.
Evidence recorded by a Magistrate to enable him to decide whether he shouldexercise summary jurisdiction under section 152 (3) of the Criminal ProcedureCode cannot be taken into consideration by him at the trial, unless it is recordedde novo.
Appeal from a judgment of the Magistrate’s Court, Colombo.
Colvin B. de Silva, with P. Nagendra, for accused-appellants.
W. Abeyakoon, Crown Counsel, for Attorney-General.
Cur. adv. vuti.
December 21, 1961. Weerasooriya, J.—
The proceedings in this case commenced with the filing of a report undersection 148 (1) (6) of the Criminal Procedure Code on the 17th March, 1960.The report alleged the commission of no less than fifteen offences, some
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WEB.RASOOBIYA, J,—Do Jong v. Domatagoda Police
o £ which (rioting and house-breaking by night) were not triable summarily,and on the 17th May, I960, the Magistrate decided to take non-summaryproceedings. In doing so he was acting in accordance with the procedureindicated in section 152 (1) of the Criminal Procedure Code. The accusedwere informed of the charges under section 156 of the Criminal ProcedureCode and the inquiry was fixed for the 9th June, 1960. The inquiry was,however, not taken up till the 25th July, 1960, on which date one witnesswas called, but at an early stage of his evidence the Magistrate thoughtthat the proceedings should not be held before him as he had previouslydealt with another case involving the original 6th accused (who wassubsequently discharged) and the inquiry was adjourned for the 29thAugust, 1960. The Magistrate before whom the inquiry was resumedon the adjourned date recorded the evidence of three witnesses includingthe witness who had been called on the 25th July. Having recordedtheir evidence, he decided to deal with the case summarily under section152 (3) of the Criminal Procedure Code. Charges against the accusedwere framed and their pleas recorded and the case was put off for the27th September, 1960. There was yet another change of Magistratewhen the case was taken up on the 27th September. The new Magistratecommenced proceedings by recording in detail the evidence of the principalprosecution witness, William Perera. The defence was not given anopportunity of cross-examining him at that stage. Thereupon the Magis-trate stated as follows : “ On the evidence before me I am satisfiedthat this is a matter that could be tried summarily under section 152 (3)of the Criminal Procedure Code. I act accordingly. Tide SummaryForm IB. Each accused charged from the charge sheet. Each pleads‘ I am not guilty ’. ” Evidently the Magistrate thought that a summarytrial before him should be preceded by an election made by him undersection 152 (3) to try the case summarily, notwithstanding that hispredecessor had already decided on a summary trial. He seems to haveoverlooked the decision in William Perera et al. v. Inspector of Police,Maharagama *, which indicates that such a course is not necessary.
Having taken the steps on the 27th September as stated above)the Magistrate proceeded with the trial. William Perera wasre-called, cross-examined and re-examined. His evidence was notrecorded de novo. After trial the 1st to the 5fch accused, who are theappellants, were found guilty of the charges laid against them andsentenced to various terms of imprisonment. From their convictionsand sentences they have filed the present appeals.
Learned counsel appearing for them took two objections to theprocedure adopted in this case. One of them is that the decisions of theMagistrates, before whom the c&se was taken up on the 29th August and27th September, 1960, to deal with it by way of summary trial, werecontrary to section 152 (3) of the Criminal Procedure Code in that theywere made subsequent to the stage contemplated in that section. Inmy opinion this objection is a good one.
1 (1949) SI N. L. R. 10.
Wanigaratne v. Juwcmia Appuhamy
167
In Queen v. Uduman et al. 1 Bonser, C.J., observed that “ theMagistrate is to make up his mind whether he will try summarily asDistrict Judge or not after hearing the evidence under section 149Section 149 (1) of the Criminal Procedure Code, as it then stood, made itobligatory on the Magistrate to record forthwith the evidence of thecomplainant or informant in a case where the report under section 148
(b) discloses an indictable offence. In the present case the decisionof the Magistrate (on the 29th August) to try the case summarily wasmade unly after the evidence of three witnesses, one of whom was theprincipal prosecution witness, was taken as part of the non-summaryinquiry which commenced on the 17th May, 1960. This procedure is notsanctioned by section 152 (3), nor is there any other provision in theCriminal Procedure Code under which it could be justified. On thisobjection alone I think that the convictions of the appellants shouldbe set aside.
The other objection taken by counsel for the appellants is even amore serious one. It is based on the ruling of this Court in Wilfred v.Inspector of Police, Panadure 2. The effect of the ruling is that evidencerecorded by a Magistrate to enable him to decide whether he shouldexercise jurisdiction under section 152 (3) of the Criminal ProcedureCode cannot be read over when he assumes jurisdiction and tries the case.In the present case, after the Magistrate recorded the evidence of WilliamPerera on the 27th September in order to decide whether he should assumejurisdiction under section 152 (3), he did not even resort to the deviceof reading over that evidence to the witness at the trial that subsequentlytook place. In the result, evidence which had been recorded prior tothe trial was improperly taken into consideration by the Magistrate infinding the accused guilty of the charges laid against them.
I set aside the convictions of the appellants and the sentences passedon them and remit the case to the Court below for non-summaryproceedings to be taken in terms of the decision of the Magistrate on the17th May, 1960. The non-summary proceedings will be before aMagistrate other than the Magistrate who tried the case summarily.
Case sent back for non-summary proceedings.