119-NLR-NLR-V-51-SIMON-WIJERATNE-et-al-Appellants-and-RATNAYAKE-S.-I.-Police-Respondent.pdf
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Simon Wijcrainc o, Itatmtyakc
1950Present: Jayetileke C.J. and Pulle J.SIMON WIJKKATNB etui,, Appellants, andRATNAVAKK (Q- r- police), jeupuHuci»v
*S. ('■ 26-27—M. C. Kalulara, 3,639
Criminal procedure Code—Indictable offence—Assumption of summary jurisdictionby Magistrate.—Evidence on oath not a condition precedent for forming necessaryopinion—Sections 121 (2), 150 (/), 152 (3).
The opinion referred to in section 152 (3) of the Criminal Procedure Codecun ho based on a report sent to the Magistrate by the Police under soction121 (2). If them is material before tho Magistrate on which he cun form theopinion that tho case is one which may properly bo tried summarily, it is opento him to base his opinion unon it without taking evidence on oath.
JAYET1LEKE C.J.—Simon Wijeratne t>. Ratnayake
497
Appeal from a judgment of the Magistrate’s Court, Kalutara.This appeal was referred by Jayetileke C.J. for decision by a benchof two Judges at the request of Gunasekara J.
M. M. KumarahUasingham with J. C. Thurairalnam, for accusedappellant.
H. A. Wijemanne, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 31,1950. Jayktileke C.J.—
This appeal was referred by roe for decision by a bench of two Judgesat the request of Gunasekara J.
The question that arises for decision is whether the opinion referredto in Section 152 (3) of the Criminal Procedure Code can be based on areport sent to the Magistrate by the Police under Section 121 (2) of theCode. Section 152 (3) reads:—
“ Where the offenco appears to be one triable by the District Courtand not summarily by a Magistrate’s Court and the Magistrate beingalso a District Judge having jurisdiction to try the offence is of opinionthat such offence may properly be tried summarily, he may try thesame summarily following the procedure laid down in Chapter XVIIIand in that case he shall have jurisdiction to impose any sentencewhich a District Court may lawfully impose.’'
In Silva v. Silva1 it was held by a Divisional Bench that a Magistrateacting under Section 152 (3) shall state his reasons for the opinion thatthe offence may be properly tried summarily and that his opinion issubjeot to review by the Supreme Court. Middleton J. said:—
“ Any case which cannot be tried shortly and rapidly in point ofraattor and time which involves any complexity of law, fact or evidence,and double theory of circumstances, a very difficult question ofintention or identity or in which the punishment ought really toexceed two years is one that is not properly triable summarily.”
In the present case Sub-Inspector Ratnayake of Tebuwana sent to theMagistrate a report under Section 121 (2) of the Code dated Juno 17,1949,((hereinafter referred to as B rej»ort) which reads :—
“I, C. A. B. Ratnayake, Sub-Inspector of Police of Tebuwana,hereby report that I have inquired into the complaint of 0. M. DavidAppuhamy of N ah all a made on June 16,1949, at about 2 or 3 a.m.While he was sleeping in his boutique he was put up by Singho Appuwho was also sleeping with him. He flashed his torch and saw SimonWijeratne, Sugathan and another unknown man inside the house.Sugathan snatched his torch and the unknown man dealt two blows
* {1904) 7 N. L. R. 182.
4!IKJAYETIIjEKJS C.J.—Simon Wijeratne. v. Ratnayake
on Singho Appu and threatened him not to get up. Sugathan tookolothea from the almirah and gave to the other two accused. Inthe meantime UdeniB Appuharay, the father of the complainant, gotup and Simon Wijeratne threatened to cut him with a sword. Theyshouted and the accused went away with clothes, &c., valued atRs. 307. They found a breach had been made on the house wall.The offences arc punishable under Sections 443 and 369 of Cap. 15,Volume 1 of the L. E. C. On receipt of the information Police visitedthe scene and made inquiries. In this connection Police arrestedDon Simon Wijeratne of Nahalla. They move that he bo remandedtill June 23, 1949, ]>cnding the completion of the inquiryOn June 23, 1949, he instituted proceedings under Section 148(1)(6)charging the two persons referred to in the earlier report with house-breaking by night by entering into the house of O. M. David in order tocommit theft and with theft of articles valued at Rs. 307 belonging to
O.M. David under Sections 443 aDd 369 of the Penal Code. On thatday the 1st accused was present on remand and the Magistrate madean order that summons should issue on the 2nd accused returnable tinJuly 14, 1949. On the summons returnable date both accused werepresent and the Magistrate made the following order :—
“ Vide B report filed. 1 peruse the B report and assume jurisdictionas A.D.J. Facts simple. Expeditious. No complications of lawor fact. LesB expense to parties and Crown ”.
Mr. Kuinarakulasinghara argued that as the opinion formed by theMagistrate is subject to review by this Court it must be based on evidencetaken on oath and not on hearsay evidence. In an unnamed caso(1>it was held that a Magistrate has the power to act under Section 152 (3)if, in his opinion, the case is essentially a simple one. In order to decidewhether a case is a simple one it seems to me that it is quite unnecessaryto take evidence on oath. The contention put forward by Counselappears to mo to bo untonable unless there is some provision in theCriminal Procedure Code which makes it obligatory on the Magistrateto record evidence on oath before he forms his opinion under Section152 (3). Section 152 (3) does not say on what materials the Magistrateshould form his opinion that the offence may properly be tried summarily.I*ut Section 149 (1), before it was amended by Section 5 of OrdinanceNo. 13 of isas, provided that, where the report under Section 148 (1) (5)disolnses an indiotable offence, tho Magistrate shall forthwith examineon oath the complainant or infoiaxant. It read as follows :—
“In cases falling under head (a) of last, preceding section andwhen t.k- report u^aer (0) discloses an muio.wv.v_the
Magistrate shall forthwith examine on oath the complainant uiinformant and if he thinks it advisable may also examine any otherperson and may for that purpose summon beforo him the complainantor informant or any other person
In Heyser v. James Silva2 and AJohamadu v. Aponso3 this Court tookthe view that the failure to tako the evidence of the complainant or
» (1915) 1 C. If'. Ji. 16.1 [1915) 1 C. W. R. 136.
* [1915) 1 C. W. R. 170.
PULLE J.—Simon Wijeratne v. Ratnayake499
informant on oath as required by Section 149 (1) before a Magistrate'exercises the powers created by Section 152 (3) is a fatal irregularity.The amending Ordinance substituted the word “ may ” for the word“shall”. Section 149(1) as amended read®:—
Section 150 (1).
“ Where the offence alleged in any proceedings instituted underSection 148 (1) (a) or Section 148 (1) {b) is an indictable one theMagistrate may, although no person by name is accused of havingcommitted such offence, examine on oath the complainant or informantand any other person who may appear to the Magistrate to be ableto speak to the facts of the case.”
The amending Ordinance gives the Magistrate a discretion as to whetheror not he should examine the complainant or informant on oath beforehe exercises the powers conferred by Section 152 (3). It follows, there-fore, that, if there are materials before him on which he can form thoopinion that the case is one which may properly be tried summarily,it is unnecessary for him to examine tho complainant or informant onoath, and it is open to him to base his opinion upon them.
In the present case the Magistrate had before him the B report whichcontained a full statement of the facts. Section 126a shows that theMagistrate has tho power to act on the report of the investigating officerand order the detention of the accused in the custody of the Fiscal.Section 126 gives the investigating officer the power to release an accusedif there is not sufficient evidence or reasonable ground, of suspicion tojustify his sending the accused to the Magistrate’s Court, When Sub-Inspector Ratnayake produced the 1st accused in Court and movedfor summons on the 2nd accused the Magistrate was, in my opinion,entitled to assume that there was sufficient evidence to support thecomplaint in the B report and to act upon it. I would answer thequestion in the affirmative and direct that the case be listed for furtherargument in due course.
Pulle J.—
I agree that there is no provision of law which prevents a Magistratefrom acting only on the material contained in a B report before he assumesjurisdiction under Section 152 (3) of the Criminal Procedure Code.Casos like Ueyser v. James Silva1 and Mohamadu v. Aponso2 canbe explained on tho basis that a step in procedure prior to the assump-tion of jurisdiction expressly laid down by Section 149 (1) of the Codebefore its amendment in 1938 had not been followed. In the lattercase Shaw J., referring to the provisions of Section 149, states “Thoobject of the provision referred to is that the Magistrate shall not actunder Section 152 (3) until he had before him sworn evidence statingthat the case is a proper one for the exercise of the powers of a DistrictJudge summarily Assuming that the object of Section 149 was asstated by Shaw J., this section, as amended, leaves it optional to a» (J926) 1 C. W. R. 156.* (1915) 1 C. W. R. 170.
;>00
Thangammah v. Kanagaaahai
Magistrate, having a B report before him, to take evidence before assum-ing jurisdiction under Section 152 (3). As a matter of constructionthere is nothing in Section 152 (3) which compels one to read into it arequirement to take evidence. I am not aware of any principle of lawwhich makes it necessary that the assumption of any jurisdiction conferredon a Judge must be preceded by tho taking of evidence on oath. Ithink that a Magistrate may act on any material properly before himas a Magistrate before assuming jurisdiction, provided the conditionslaid down in Silva v. Silva1 are satisfied.
Tho case of Abanchi Hamy v. Peter2 was cited in the course of thoargument by learned Crown Counsel. A bench of two Judges decidedthat tho failure to tako the complainant’s evidence before assumptionof jurisdiction was not a fatal irregularity but one curable under Section425 of the Code. In the view I take that the failure to record evidencein the case under consideration is not oven an irregularity, tho applicationof this decision does not arise.
I would answer the question whether the opinion referred to inSection 152 (3) may be based on tho B report in the affirmative.
Appeal to be fated in due course.