023-NLR-NLR-V-46-RATNAYAKE-et-al.-Appellants-and-INSPECTOR-OF-POLICE-MORATUWA-Respondent.pdf
IS
JAYETIXiEKE J.—Ratnayake and Inspector of Police, Moratutoo.
1945Present : Jayetilleke J.
RATNAYAKE et al., Appellants, and INSPECTOR OF POLICE,MOEATUWA, Respondent.
318-20—M. C. Panadure, 34,118.
Sentence of whipping—Magistrate trying case summarily as District Judge—Power to impose sentence of whipping—Corporal Punishment Ordinance(Cap. 17), sec. 7 (1).
Where a Magistrate assumes jurisdiction as District Judge and trieaa case summarily under section 152 (3) of the Criminal Procedure Codehe has no power to impose a sentence of whipping for an offence undersection 380 of the Penal Code.
^^JPPEAL from a conviction by the Magistrate of Panadure.
L; A. Rajapakse, K.C. (with him Shelton de Silva), for 3rd accused,appellant.
J). W. Fernando for 2nd accused, appellant.
Cur. adv. cult.
T. S. Fernando, C.C., for the Crown.
February 11, 1945. Jayetileke J.—
There is ample evidence to support the convictions of the 1st and 2ndaccused and I would affirm them. But I have doubts about tHe correct-ness of the conviction of the 3rd accused. The evidence led by the
JAYBTlIjEKE J.—Ralnayake and Inspector of Police, Moratuwa.
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prosecution was to the effect that on November 1, 1944, at about 8.30 p.m.the 1st and 2nd accused and two others stopped Privates Tvlanns andHayward of the Royal Air Force when they were going "along the road,threatened them with knives and clubs, and took them into a garden.Then one of the four men blew a whistle and about 12 others armed with,clubs turned up. The 1st and 2nd accused took everything that PrivatesManns and Hayward had in their pockets and handed some of the .thiugsto one of the 12 men. The 1st and 2nd accused were identified by Mannsand Hayward that very night. On the following day the naval ratings-were paid their salaries at the camp and there was a crowd assembledthere. Hayward noticed the 3rd accused in the crowd and thought thathe was the person to whom the things that were robbed were handedby the 1st and 2nd accused. He requested the Duty Petty Officer to speakto the 3rd accused in English in order to satisfy himself whether he was theperson, He did so, because the person who received the articles the previousnight spoke a word or two to him in English. The Duty Petty Officerasked the 3rd accused in English where the foreman was. The 3rdaccused replied, “ What for master ”. Hayward was then satisfiedthat it was the 3rd accused to whom the stolen things were handed theprevious night. The 3rd accused was thereupon .taken to the guardroom where Manns also identified him. The evidence of Hayward showsthat before the 3rd accused uttered the words, " What for master ”, hehad some doubt in his mind as to his identity. The Magistrate does notseem to have given his mind to this aspect of the matter. Nor has hegiven his mind to the evidence of the 3rd accused. The 3rd accusedsaid that he lived at Moratuwa about two miles away from the sceneof the robbery, that he was employed at the camp as a first grade masonand was in receipt of a salary of Rs. 160 a month.He led evidence to
prove that he had hitherto borne e good character. To my mind itseems improbable that at the age of 45 the 3rd accused would havejoined the 1st and 2nd accused who are hardly out of their teens inwaylaying people and robbing them. I am inclined to -think that Mannsand Hayward are mistaken about the identify of the 3rd accused. Iwould accordingly set aside the conviction of the 3rd accused and acquithim.
The only other question is whether the sentence that the 1st and' 2nd-accused should receive six lashes each is illegal. Counsel for the 2ndaccused contended that the accused were convicted by the Magistrate’sCourt and that for an offence under section 380 of the Penal Code asentence of whipping can be imposed only by the Supreme Court or-the District Court. He relied ori section 7 (1) of the Corporal PunishmentOrdinance (Cap. 17). It reads :
V Whoever is convicted by the Supreme Court or any DistrictCourt of any of the following offences may be punished with whipping-
In this case the Magistrate, who was also ^n Additional District Judge,assumed jurisdiction under section 152 (3)' of the Criminal Procedure-Code and tried the accused summarily. ' The question arises whether no-tried the accused as Magistrate or as District Judge. Considerable light46/12
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JAYETILEKE J.—Ratnayake dnd Inspector of Police, Moratuwa.
is thrown on the problem by a consideration of Ordinance No. 8 of1896 which was repealed by the Criminal Procedure Code, No. 15 of 1898,and replaced by section 152 (3). The preamble to and the title of theOrdinance show that the object of the Ordinance was to enable casestriable by a District Court to be tried summarily by the District Judgewithout the necessity for a preliminary inquiry and commitment whena District Court and Police Court are presided over by one and thesame officer. The reason for the repeal of the Ordinance seems to bethat the legislature was anxious that the District Court should not trycases without a committal ami without an indictment being presentedby the Attorney-General.
In an unnamed case 1 Lawrie A.C.J. said : —
" The Ordinance 8 of 1896 dealt with the trial of cases by a DistrictCourt summarily without a committal for trial. The Ordinance wasrepealed by the New Criminal Procedure Code and the 152nd sectionof the code deals with the trial of cases not only by a District Courtbut also by a Police Court.
Instead of giving power to the District .Court to try without com-mitment, the law now gives power to the Police Magistrates, who arealso District Judges, not only to try summarily cases hitherto .triablebv a District Court, but to impose District Court sentences not asDistrict Judges but as Police Magistrates ”.
In The King v. Kulanthaivelu – de Sampayo A.J. said : —
“ It has often been pointed out that what section 152 of the CriminalProcedure Code does is to enable a judicial officer to hear a case summarilyas Police Magistrate and not to give jurisdiction to the District Judgewithout a committal and without an indictment being presented bythe Attorney-General ”.
The question I have referred to is entirely concluded by these decisionswith which I must say with the greatest respect, I have no hesitation inagreeing. These decisions given in 1899 and 1904 are reinforced by thedecisions of the subsequent 40 years. I shall refer to only two of themviz. : JJsubu Lebbe v. Sopiya Nona 3 and Madar Lebbe v. Kiri Banda *.In the former de Sampayo said : —
“ Misleading language is often employed to describe the natureof the proceedings authorised by section 152 (3).The Police Magis-
trate, for instance, is said to act as District Judge but this ia whollyincorrect. The Police Magistrate acts, and can only act as PoliceMagistrate, the only difference being that, being also District Judge,he has power to impose a sentence which ordinarily a District Judgemay impose
and in the latter case he said :—^
“ The fact to be emphasized is that the Police Magistrate acts in allcases as. Police Magistrate and in conformity with the procedure laiddown for the trial of cases in the Police Court ”.
1 Koch's Reports 19.
* 1 Tambyah's Reports 17.
1C. W. R. 93.
IS N. L. R. 376.
JAYETILEKE JH. C. Fernando and M. Thambiraja.
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Counsel for the respondent sought to find support in the decision inNadar Rajah v. Oopala * where Dalton J. doubted the correctness of .thedecisions in Usubu Lebbe v. Sopiya Nona (supra) and Madar Lebbe v.Kiri Banda {supra) on the ground that the provisions of Ordinance No. 8of 1896 appeared, to him to have been re-enacted in section 152 (3).With great respect 1 wish to say I cannot agree with that view. OrdinanceNo. 8 of 1896 expressly provides that the officer who tries the case shoulddo so in liis capacity as District Judge. The words italicized by medo not appear in section 152 (3). Nor is there anything in the sectionwhich indicates that the judicial officer who tries the case summarilydoes so in his capacity as District Judge. Indeed the provision that heshall have the power to impose any sentence which a District Courthas power to impose indicates that he tries the case as Magistrate. The1st and 2nd accused were not, in my opinion, convicted by the DistrictCourt and the sentence of whipping is therefore illegal. I cannot acceptthe view presented by counsel for the respondent that the sentence ofwhipping can be supported on the ground that the Magistrate had thepower to impose any sentence which a District Court can impose, for thereason that section 7 (1) of the Corporal Punishment Ordinance is clearbeyond mistake on the point. It' enacts that a sentence of whippingcan be imposed where a person is convicted by a District Court. The1st and 2nd accused were clearly not convicted by the District Court.For these reasons I would set aside the sentence of whipping. Thesentences of imprisonment will stand.
Sentence of whipping set aside.