136-NLR-NLR-V-74-J.-W.-TILAKARATNE-and-5-others-Appellants-and-INSPECTOR-OF-POLICE-GANEMULLA-.pdf
Tilaharatne v. Inspector oj Police, Ganemulla571-
1971Present: de Kretser, J.
W. TILAKAR ATNE and 5 others, Appellants, andINSPECTOR OF POLICE, GANEMULLA, Respondent
S.C. 1S-23/70, with Applications in Revision—M. Q. Gampaha, 2-13S5/A
Criminal Procedure Code-Section 152 (3)—Scope and ejjcct—Trial of an indictableoffence with an offence triable summarily—Omission of Magistrate to assumejurisdiction under s. 152 (3)—Resulting 'position.
Where a Magistrate who is also a District Judgo has tried summarily onoffence which the Schedule to the Criminal Procedure Codo shows is triable bytho District Court, ho must bo presumed to havo acted correctly and thereforein the oxerciso of tho discretion given by scctibn 153 (3) of tho Codo. Thefailure to placo on record his opinion that it could properly bo summarily tried,with his reasons for that opinion, is on irregularity which docs not malte thotrial itself an illegality, for it would bo open to tho Supremo Court, in an appealor in revision, to consider whether in tho particular circumstances of tho ensoit was on offenco which could havo been properly so tried and to set asidethe conviction and sentence and order tho Magistrate to take non-summaryproceedings- if the Supremo Court thinks it should have been tried summarily.Silva v. Silva (7 N. L. R. 182) considered.
672
DE KRETSER, J.—Tilakaralne v. Inspector of Police, Gunemulla
Whore there is a joinder, at one summary trial, of an indictablo ofTenco inrespect of which the Magistrate has failed to assumo jurisdiction under section152 (3) of the Criminal Procedure Code, with an ofTenco summarily triable by him,it i3 permissible to separato the illegal trial of the indictable ofTenco and sustainthe conviction on the remaining summarily triable count. In such a case,the allegation that the two offences were committed in the courso of the-samo transaction does not make a difference to the legal position. William f.Inspector of Police, Mirigama (72 N. L.R. 400) not followed.
Appeal from a judgment of the Magistrate’s Court, Gampaha.
E. R. S. R. Coomaraswamy, with G. Chakradarcin and S. G. B-Walgampaya, for tho 1st to 4th and 6th accused-appellants.
6th accused-appellant unrepresented and absent.
Tyrone. Fernando, Crown Counsel, for the Attornej'-Gencral.
Cur. odv. null.
August 23, 1971. de Kretseb, J.—
Tho six accused wero tried before the Magistrate of Gampaha (Mr.
W.P. N. de Silva) on the following charges :—
Fifth accused with robbery of a wrist watch valued at Es. 180 and
a purse with 65 rupees in it belonging to one Iv. E. Jayawardcno—Section 3S0 ;
All the accused in the course of the same transaction with causing
hurt to K. E. Jayawardcno in the committing of that robbery—Section 382 ;
In the alternative to count 2 all the accused in the course of tho
samo transaction with causing simple hurt to K. E. Jayawar-dene—Section 314.
The Magistrate convicted the 5th accused on counts 1 and 2 and takinginto consideration his antecedents and age sentenced him to pay fines ofRs. 400 and Rs. 200 respectively, the default sentence being three months'rigorous imprisonment on each count. Ho had formed the-’opinion thatthe fifth accused had acted independently in committing the robbery.Ho convicted the 1st, 2nd, 3rd, 4lh and 6th accused on the alternativecount of causing simple hurt. He fined each of them 100 rupees. Alltho accused have appealed.
.DE KRETSER, J.—Tilakaralnc v. Inspector of Police, Gancmulld
573
The schedule to the Criminal Procedure Code shows that robbery ofproperty valued at over two hundred rupees and the causing of hurt incommitting such a robbery are triable by the District Court. Section152 (3) of the Criminal Procedure Code permits the Magistrate, who isalso a District Judge, to try such offences summarily if he is of opinionthat they rimy properly be so tried.
In the instant case, when theMagistrate charged the accused on 18.4.69on which date the amended plaint was filed, there is nothing to show on therecord or on the charge sheet that he was aware that counts 1 and 2 wereordinarily indictable offences which, he had formed the opinion, could inthis case, be properly tried summarily by him. In consequence, it isurged on behalf of the 5th accused that his trial was on illegality. Onbehalf of the other accused, it is submitted that the joinder at one summarytrial of an indictable offence with offences tried summarily vitiates theentire proceedings if the Magistrate omits to assume jurisdiction in termsof Section 152 (3). Section 152 (3) reads as follows :—
“ Where the offence appears to be one triable by a District Court andnot summarily by a Magistrate’s Court and the Magistrate being also aDistrict Judge having jurisdiction to try the offence is of opinion thatsuch offence may properly be tried summarily, he may try the samefollowing the procedure laid down in Chapter XVIII and in that casehe shall have jurisdiction to impose any sentence which a DistrictCourt may lawfully impose.”
It will be seen that it is not all District Court cases that are triablesummarily but only such as a Magistrate, who is also a District Judge,considers may properly be so tried. It will also be seen that the sectiondoes not require a Magistrate to place on record his opinion that theoffence before him may properly be so tried nor does it require him toplace on record his reasons for forming such opinion.
It was the Acting Chief Justice Moncrieff in his judgment in Danhia v.Donhamy1 reported in 2 Browne's Reports at 230 whojpointedout that theMagistrate should state his opinion and intention in order to show that heis not trying a non-summary case in a summary manner by mistake.
Justice Middleton in the Full Bench case Silva v. Silva2 which metto give its opinion on the scope and effect of Section 152 (3) citedwith approval this observation of Moncrieff A. C. J. and went on to say“ . . . . and I think for his own sake ho ought to give his reasons for holdinghis opinion so that this court may judge on the soundness of that .
In Silva v. Silva it was decided that the question ■whether the casemay be properly tried summarily under Section 152 (3) is within theprovince of the Supreme Court to roview on appeal and that it wan theduty of the Magistrate acting undor that section to state his reasons forhis opinion that the offence may bo properly tried summarily.
{1901) 2 Browne; at 230.
* (1&04) 7 N. L. R. 182.
574JDE KRETSER, J.—Tilaharalnc v. Inspector of Police, Gancmulla
It -was also pointed out that in a caso which cannot be tried shortly andrapidly in point of matter and time, which involves complexity of law, factor evidence, and double theory of circumstances or difficult question ofintention or identity or knowledge or the punishment ought really toexceed two years is one that is not properly tried summarily. SampayoA. J. in the course of his order in Silva v. Silva said " I do not see how anygeneral rule could bo laid down. The exercise of the jurisdiction is amatter of discretion with the Magistrate and each case must depend onits own circumstances. . . . In my opinion the discretion vested in theMagistrate should be reasonably exercised and may need in individualcases to be reviewed by the appellate court which has ample powers forthis purpose
It appears to me that where a Magistrate who is also a District Judgehas tried summarily an offence which the schedule shows is triable by theDistrict Court, ho must be presumed to have acted correctly and thereforein the exercise of the discretion given by Section 152 (3). The failure toplace on record his opinion that it could properly be summarily tried withhis reasons for that opinion which is what the Full Bench in Silva v. Silvalaid down he should do is in my opinion an irregularity which may have itsrepercussions on him personally but does not make a trial itself an illegalityfor it would be open to the Supreme Court in an appeal or in revision toconsider whether in the particular circumstances of the case it was anoffence which could have been properly so tried and to set aside theconviction and sentence and order the Magistrate to take non-summaryproceedings if the Supreme Court thought it should not have been tried^ summarily.
An examination of the record in the instant case shows that when theoriginal plaint had been filed about an year earlier according to which itwas the first accused who had committed the robbery the Magistrate hadrecorded evidence and had formed the opinion that it was an offence whichcould properly bo tried summarily and had given his reasons for thatopinion. It appears to be sheer inadvertence that when the amendedplaint was filed according to which it was the 5th accused who had■committed the robbery he did not make a similar entry when he chargedthe accused. The sentence he imposed shows clearly that ho was aware hewas trj-ing summarily what was an offence triable by the District Court.An examination of the evidence satisfies me that it was a case which theMagistrate could properly have tried summarily. On a consideration oftho evidence which the Magistrate has accepted it appeals that the assaulton tho complainant took place first and was not with the object of robbinghim but that the 5th accused took advantage of the melee to steal thewatch and purse of the complainant. I therefore alter the conviction oncount 1 to one of theft. I sentence the 5th accused on this count to pay a
DE KRETSER, J.—T it akaratnc v. Inspector of Police, Oanemulla
575
fino of Rs. 300, in default three months’ rigorous imprisonment. If thefine is paid I direct that t«o hundred rupees to be jDaid to the complainant.I set aside the conviction on count 2 and convict him on count 3 of causingsimple hurt and I sentence him to pay a fine of Rs. 100, in default threemonths’rigorous imprisonment.
Two judgments—Ramasamy et al. v. Gunaralne1 and William v. Inspectorof Police, Mirigama2—are relied on for the submission made on behalf of-1st, 2nd, 3rd, 4th and Oth accused that the joinder at one summary trialof an indictable offence in respect of which the Magistrate has failedto assume jurisdiction with an offence summarily triable by him vitiatesthe proceedings ab initio. The first of these cases was considered byme and I refused to follow it when I wrote the judgment in Josephv.. Wootler 3 in which I held it was permissible to separate the illegaltrial of an indictable offence and sustain a conviction on the remaining' summarily triable counts. I have perused the judgment of WijayatilakeJ. in William v. Inspector of Police, Mirigama which was written afterhe had the advantage of reacb'ng my judgment in Joseph v. Wootler.
I could find- nothing in it that persuades me that my reasoning andthe conclusion I have arrived at .in Joseph v. Wootler is erroneous for. I am quite unable to share his view that there will bo difficulty indistinguishing the evidence in support of the respective offences oneof which was indictable nor do I shar° his view that the offencebeing committed in the course of one incident makes a differenceto the legal position. All that remains for me to consider is whetherthe Magistrate was right in convicting these men on the evidenceavailable before him on the charge of simple hurt. Tho evidenceestablishes that the incident started off with a fight between the 5thaccused and the complainant who according to the evidence is a biggerand stronger man than the 5th accused. The evidence is that there wasno previous illwill between the complainant and the accused.' It is thecase for the 1st, 4th and 6th accused that they only intervened to stoptho fight. It is the case for tho 3rd accused that he was never there.
It is the case for the 2nd accused that this incident happened in front ofhis boutique and all that he did was to protest at what was happening.There is insufficient evidence to establish that all these accused wereactuated by a common intention to assault the complainant and as suchthey will be only responsible for what each of them isproved tohavedone.
It is quite possible that in intervening in a fight some of those intervcnirjgalso struck blows. Be that as it may, in the prompt first complaint thecomplainant made ho did not allege that the 4th accused struck him andSumanadasa the only witness called to corroborate his evidence doesnot specifically say that the 4th accused struck the complainant. Ittherefore appears to me that 4th accusod should be given tho benefit ofthe doubt and should bo acquitted. I therefore allow his appeal. In
1 (1968) 72 N L.It. 187.J (1969) 72 N.L.R. 406.
* (1969) 72 R.L.it. 213.
678
DE KRETSER, J.—Tilakaralne v. Inspector o] Police, CanemuUa
regard to the other accused the Magistrate -who had the advantage ofhearing and seeing the witnesses has accepted the testimony of thecomplainant that ho was struck by these persons. I therefore see noreason to interfere on the question of fact. It appears to me, however,that having regard to the fact that there was nothing against thempreviously and that thi3 was an incident that happened on the spur of themoment they may be treated as first offenders. I therefore set aside theorder convicting them and I order that without proceeding to convictioneach of them should be directed to enter into a bond in a sum of Its. 200personal in terms of Section 325 of the Criminal Procedure Code to be ofgood behaviour for a period of one year. A condition of the bond wouldbe that each of them should pay Es. 100 as Crown costs within threemonths of entering into the bond. Subject to the variation in sentenceI have set out, the appeals of 1st, 2nd, 3rd and 6th accused are dismissed.The appeal of the 5th accused is dismissed subject to the variation I havemade in regard to sentence as set out in this order. The appeal of the4th accused is allowed aud he is acquitted.
Appeal of 4th accused allowed.
Appeals of the other accused dismissed, subject to variation in sentence.