SILVA v. SILVA.

SILVA  v.  SILVA.

P.  C.,  Colombo,  85,874.

Criminal Procedure Code, s. 152 (3)-" May properly be tried summarily "- Summary trial of offence triable by District Court-Discretion of Judge -Duty of Judge to record reasons for entering upon trial of such cases -Power of Supreme Court to review the reasons given.

    The question whether a case may be properly tried summarily, under section 152 (3) of the Criminal Procedure Code, is within the province of the Supreme Court to review on appeal, and in that of the Attorney-General to prevent, should he think it necessary to act under section 390.

    It is the duty of the Magistrate acting under section 152 (3) to state his reasons for the opinion that the offence may be properly tried summarily.

    Any case which cannot be tried shortly and rapidly in point of matter and time, which involves any complexity of law, fact or evidence, and double theory of circumstances, or any difficult question of intention or identity, or in which the punishment ought really to exceed two years, is one that is not properly triable summarily.

THIS was a charge of cheating laid under section 403 of the Penal Code. It was alleged that on the 7th March, 1904, the two accused persons, trading together as brokers, fraudulently

and dishonestly induced the complainant to deliver to them 159 cwt. of copra, falsely pretending that they would sell the same to Messrs. Tarrant, Henderson & Co. at Rs. 54 per candy (equal to 5 cwt.) and pay the proceeds to the complainant, but that they sold the said copra and dishonestly misappropriated the money.

    After partly hearing the complainant's evidence, the Police' Magistrate (Mr. W. E. Thorpe) recorded as follows:-

    " I think this is a case which I can properly deal with as District Judge. "

    The accused objected to being tried summarily, and Mr. Thorpe ruled: " This matter is within my discretion, and I see no reason to alter my order. "

    He heard the case and found the accused guilty and sentenced each of them to two years' rigorous imprisonment.

    They appealed. The case was heard before a Full Bench consisting of Justices Wendt, Middleton, and Sampayo on 9th May, 1904.

    Walter Pereira (with him Batuwantudawa), for accused, appellants, referred to section 152 of the Criminal Procedure Code;  Jayawardene  v.  Pereira,  1  Tamb.  15;  Danhia  v. Donhamy, (2 Browne 230); Vengadasalem Chetty v. Mohideen Pitche (4} N. L. R. 339); P. C, Colombo, 85,820, decided by Layard, C.J., on 12th April, 1904; and Koch's Rep. 8.

    Ramanathan, S.-G., for the Crown.-The word " properly " in section 152 (3) of the Criminal Procedure Code means suitably to the circumstances of each case. A summary trial is rapid, and gives little time for a proper consideration of all the facts of an involved or obscure case. The accused would therefore naturally seek the advice of able counsel. The accused has a right, if the case is complicated by questions of fact or law, to have it considered also by the Law Officers of the Crown and finally tried by a Judge aided by a jury or assessors.

    The word " properly " in section 152 (3) seems to mean the same thing as "if he thinks fit " in section 7 of the same Code. The discretion vested in him should be exercised only for sound reasons. If the reasons appear to be unsound, an appeal lies to the Supreme Court. Otherwise justice would suffer.

Cur. adv. vult.

6th June, 1904. WENDT, J.-   

    This case was sent before a Bench of three Judges by the Acting Chief Justice in order that the opinion of the Court might be taken upon the scope and effect of section 152 (3) of the

Criminal procedure Code. This course, I understand, was considered advisable in view of certain decisions pronounced by individual Judges of this Court, and of the fact that in an increasing proportion of cases Magistrates were assuming to try under this section charges ordinaril

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