007-NLR-NLR-V-66-R.-C.-FERNANDO-Petitioner-and-E.-WIJESEKERA-et-al.-Respondents.pdf
SRI SKANDA RAJAH, J.—Fernando v. Wijesekera
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1964Present: Sri Skanda Rajah, J.
R.C. FERNANDO, Petitioner, and'Ei. WIJESEKERA et al., Respondents
S.C. 524{63—Application for Revision in M. C. Colombo, 29,426
' and 33,359 {No. 33/64)
Criminal procedure—Assumption by Magistrate of civil jurisdiction in a criminalcase—Illegality—Criminal trespass.
Where, in n prosecution for criminal trespass, the Magistrate decided tohave an inspection and to fix tbe boundary between two lands—
Held, that a Magistrate is not entitled to convert his criminal jurisdictioninto one of civil jurisdiction. Even by agreement parties cannot confer thatjurisdiction on a Magistrate.
Application to revise an order of the Magistrate’s Court, Colombo.
N.E. Weerasooria, Q.C., with H. Mohideen, for the petitioner.
C. Nadarajdh, for the 1st and 3rd respondents.
February 20, 1964. Sbi Skanda Rajah, J.—
Magistrates appear to be assuming jurisdictions which are not theirs.Only recently I had occasion to refer to a similar matter—vide S. C.767-768 M- C. Balapitiya 37267, Supreme Court Minutes of 12th December,
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SRI SK.ANDA RAJAH, J.—Fernando v. Wijesekera
1963. The order that was made by the Magistrate in that case was“ At this stage parties move that a commission be issued to a commis-sioner to define the southern boundary of lot 4 in plan No. 630 and todepict the milla tree which had been felled from lot 4. If the milla treeis found within lot 4, the accused to pay the costs of the survey and thevalue of the tree. If the tree is found outside lot 4, the plaintiff to paythe costs of the survey. Kachcheri Receipt and commission on 13.3.63.Survey to be taken out at the expense of the complainant. ” Thatwas also a case of alleged criminal trespass, and after the survey, evenwithout the accused pleading guilty, the Magistrate committed theaccused to jail because they refused to pay the survey fees. ” I setaside these proceedings, indicating that it was not sanctioned by anyprovision of law.
In these cases too the Magistrate has converted his criminal jurisdictioninto one of civil jurisdiction Even by agreement parties cannot conferthat jurisdiction on a Magistrate. These were also cases of allegedcriminal trespass and the Magistrate decided to have an inspection andto fix the boundary between the two lands.
I would also refer to the judgment of Mr. Justice Dias in the case ofPerera v. Mendis 1. In the course of his judgment the learned Judgewent on to say, “ Compounding an offence does not mean that it entitles' a Magistrate to turn a criminal proceeding into a civil proceeding byissuing commissions to surveyors and entering agreements on record.When a case is compounded parties inform the Magistrate that the case iscompounded and the accused is then set free. That is all that theMagistrate has to do. ”
Acting by way of revision, I set aside all the proceedings in these twocases, M. C. Colombo No. 33359/B and 29426/B. As these cases referto a civil matter, I acquit the accused. I direct the Magistrate to havethe fence that has been erected on his order removed either through theFiscal or the Police. Convey this order to the Magistrate.
Application allowed.
1 (1948) 49 N. L. R. 240.