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ADONIS APPU v. NICHOLAS
NLR6V87
ADONIS APPU v. NICHOLAS.
P. C, Balapitiya, 23,712.
Offence not summarily triable-Trial by consent-Criminal Procedure Code, s. 166-Obtaining consent of accused before framing charge-Irregularity without prejudice-Conviction for lurking house trespass and theft- Separate sentences.
Where information had been given to the Police Court of theft in the complainant's house and gaining entrance into his house through a hole made near the frame of the door, and the accused, being brought up on the same day, knew the fact of this information and what they were going to be charged with, and the Magistrate, deeming it expedient to try the case summarily, obtained their consent to do so without having previously framed the charges of lurking house trespass and theft, as provided in section 166 of the Criminal Procedure Code, and then convicted them of those offences and passed two separate sentences,-
Held, that as the charge was framed almost immediately after their consent was obtained, and they did not object to that procedure or consider themselves injured by it, the irregularity complained of in appeal did not justify the reversal of the conviction.
Held, further, that lurking house trespass and theft were distinct offences and punishable with separate sentences.
APPEAL against a conviction for lurking house trespass, under section 439 of the Penal Code, and for theft. The Police Court of Balapitiya was informed of the theft in the complainant's house and that entrance thereto had been gained through a hole made near the frame of the door. The accused, who knew the fact of this information and what they were going to be charged with, were brought up before the Magistrate. He deemed it expedient to try the case summarily and obtained the consent of the accused to do so, without previously having framed the charges of lurking house trespass and theft. After hearing evidence for the prosecution and defence, he sentenced the accused to rigorous imprisonment for three months for each of the offences aforesaid, such sentences to run in succession.
H. Jayawardene, for appellant.-The offence of lurking house trespass is beyond the jurisdiction of the Police Court. The Magistrate illegally obtained the consent of the accused to be tried in the Police Court. No charge had been framed against them before they consented. Section 166, sub-section (3), of the Criminal Procedure Code shows the proper procedure to be adopted by the Magistrate, if he thinks it expedient to deal with the case himself. He framed no charge as he ought to have done under that section; the accused therefore did not then know what they were tried for, and their consent has no value. [Moncreiff, A.C.J.-Is that a
substantial objection?] Certainly, not to know what they are going to be tried for. How are they to direct their evidence in defence? Victoria Kurera v. Jusey Fernando, 7 S. C. C. 177; Christian v. De Soysa, 9 S. C. C. 176. There is another serious irregularity. The Magistrate recorded part of the evidence for the prosecution. He then examined some of the witnesses for the defence, and then he resumed the evidence for the prosecution. That was unfair and embarrassing. The conviction and sentence also are illegal. The Magistrate found the accused guilty under sections 439 and 367 and awarded two separate sentences, which section 67 of the Penal Code does not justify. Meedin v. Kirihatana, 2 N. L. R. 157; Queen v. Cara, 1 N. L. R. 320. In Mendis v. Cornelis (3 N. L. R. 196) Bonser, C.J., expressed a contrary opinion and questioned the soundness of the decision in Meedin v. Kirihatana. That, however, leaves the weight of authority against the imposition of two sentences for an offence arising out of the same act or series of acts. One of the sentences here should be cancelled.
21st August, 1902. MoncrEiff, A.C.J.-
The accused appeal from a conviction on charges framed under sections 369 and 489 of the Penal
