SARAM v. WEERA.

P. C, Colombo, 87,639.

Criminal Procedure Code, chapters XVI. and XIX.-Change of proceeding from inquiry into trial-Criminal Procedure Code, s. 226 (Ordinance No. 22 of 1890, s. 7)-Right of Police Magistrate to convict upon evidence taken in a case which he has no power to try.

In proceedings taken under chapter XVI. of the Criminal Procedure Code, a Police Magistrate has to take and record evidence for the prosecution with the view of ascertaining whether there is such a prima facie case made out against the accused as could justify him in commit­ting the accused for trial to a Superior Court, and not to determine his guilt or innocence which is in issue only in trials under chapter XIX.

Where, in the course of proceedings initiated under chapter XVI, a Magistrate finds that the facts proved amount to an offence triable by him summarily under chapter XIX., the proper course is to stay

proceedings on the inquiry, frame a fresh charge, and try the case, giving the accused notice that he is on his trial, and affording him sufficient time to prepare his defence.

Section 226 of the Code (as amended by Ordinance No. 22 of 1890) refers to cases where a Police Magistrate is trying a case over which he has jurisdiction, and not to cases where he is not acting as Judge, but as an inquirer. Its import is that, when a Judge is trying a case and finds that the charge laid was not correctly framed according to the facts which appear in evidence before him, but that some other offence over which he has jurisdiction is proved, he may convict of that offence.

Facts which appear in the depositions of witnesses taken, not for the purpose of a trial, but for the purpose of an inquiry, cannot be said to be proved for the purpose of a conviction.

THE accused in this case was charged at the instance of the   Superintendent of Police under section 392 of the Penal Code with criminal breach of trust as a public servant, in that, while acting as storekeeper of the Police Department, he was entrusted with a sum of Rs. 100, whereof he misappropriated a sum of Rs. 86. On being brought up on a warrant, the Police Magistrate explained the charge to the accused, who stated he was not guilty. Evidence was taken on a subsequent day and a charge formulated.

The Police Magistrate then recorded as follows :

Accused denies the charge. Mr. Advocate Bawa, for accused, addresses the Court on the question of jurisdiction, and the question of the innocence of the ac