088-NLR-NLR-V-49-VELUN-PEIRIS-Appellant-and-THE-INSPECTOR-OF-POLICE-MORATUWA-Respondent.pdf
298
Velun Peiris v. The Inspector of Police, Moratuwa.
1948Present: Wijeyewardene S.P.J.
VELUN PIERIS, Appellant,' and THE INSPECTOR OF POLICE.MORATUWA, Respondent.S. C. 204—M. C. Panadure, 49,668.
Criminal Procedure Code—Accused charged with offences triable summarily—Magistrate
assuming jurisdiction as District Judge—IrregulaiProper procedure if
offence is serious—Sections 152 (3) and 192.
Where an accused is charged with offences triable summarily, a magistratecannot, by investing himself with jurisdiction under section 152 (3) of theCriminal Procedure Code, exercise the high punitive powers given by thatsection. If he thinks that the offences cannot be adequately punished by aMagistrate’s Court he should act under section 192 of that Code and committhe accused for trial before a higher court. 1
1 10 Cr. A. B. 37.
WUEYEWARDENE S.P.J.—Velun Peiria v. The Inspector of Police, Moroiuwo. 299
^PPBAIj from a judgment of the Magistrate, Panadure.
H. A. Chandrasena, for the accused, appellant.
A. C. A lies, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 19, 1948. Wueyewabdene S.P.J.—
The accused was alleged to have entered the room of a younglady and used criminal force on her, knowing it to be likely that hewould therby outrage her modesty. He was charged on two countsunder sections 437 and 345 of the Penal Code.
On December 16, 1947, the Magistrate found the accused guilty onboth the counts and sentenced him to two years’ rigorous imprison-ment on the first count and a consecutive period of two years’rigorous imprisonment and fifteen “ lashes ” with a rattan on thesecond count.
Mr. Chandrasena who appeared in support of the appeal submittedthat the accused was prejudiced by the Magistrate trying him onDecember 16. Mr. Chandrasena invited my attention to the journalentry “ call case on December 16, 1947.” made on December 11, 1947,and stated that according to the practice in the Panadure Courts an“ acting Magistrate ” did not fix dates of trial but directed thecases to be called before the permanent Magistrate for fixing trialdates. He submitted that the accused appeared on December 16without a lawyer defending him, as he thought that the case wouldnot be tried on that date in accordance with the practice referred to.In reply to inquiries made by the Registrar of this Court at mydirection, the Magistrate who tried the accused wrote on April 5,1948 :—
“ The practice at the Panadure Magistrate’s Court when an actingMagistrate officiates during the absence of the permanentMagistrate is to fix cases instituted before him for trial indue course or to direct that a case be called on a certaindate to fix it for trial. In this case the accused wasarrested and produced on December 11, 1947, before theAdditional Magistrate, Mr. G. Amerasinghe, who chargedthe accused and after remanding him till December 16,1947, made order to have the case called on December16, 1947. On December 16, 1947, the accused was pro-duced before me and thereafter I charged him and pro-ceeded to try the case as firstly he was on remand andsecondly he did not move for a postponement to enablehim to retain Counsel or for any other reason as wouldappear from the entry in the record under date December16, 1947, and also from his statement which appears atpage 9 of the record.”
300
Somaaunderam v. ManicJcam.
I do not think it necessary to make any further reference to thismatter, as I have decided to interfere -with the conviction on anotherground.
On looking into the proceedings in the Magistrate’s Court I find anirregularity in the procedure adopted by the Magistrate. When theaccused appeared before him on December 16, 1947, the Magistrateproceeded to invest himself with jurisdiction under section 152 (3)of the Criminal Procedure Code. That section, however, applies onlyto cases where an accused is charged with offences which appear tobe “ triable by a District Court and not summarily by a Magistrate’sCourt.” Both the offences in this case were triable summarily bya Magistrate’s Court. The Magistrate, therefore, committed a seriouserror in trying the accused under section 152 (3) and exercising thehigh punitive powers given by that section. On the plaint filed inthe case the Magistrate had to try the accused summarily. If afterrecording the evidence for the prosecution and the defence he formedthe opinion that the accused could not be punished adequately by aMagistrate’s Court, he should have acted under section 192 of theCriminal Procedure Code and committed the accused for trial beforea higher Court.
This Court has, no doubt, the power to sustain a conviction evenwhere a Magistrate has assumed jurisdiction under section 152 (3)in the case of a summary offence and cure the irregularity withregard to the sentence by substituting a sentence which the Magistratecould have passed if he followed the procedure laid down insection 152 (2) (vide Madar Lebbe v. Kiri Banda'1). But, in viewof the somewhat strong opinion formed by the Magistrate with regardto the gravity of the offences alleged to have been committed by theaccused, I would set aside the conviction and direct fresh proceedingsto be taken before another Magistrate.
Sent back for trial before another Magistrate.