THE KING v. FERNANDO et al.

D. C. (Criminal), Negombo, 2,354.

Robbery-Voluntarily causing hurt whilst committing robbery-Jurisdiction of the District Court-Powers of the Attorney-General- Plea to jurisdiction, when to be taken-Ceylon Penal Code, ss. 380 and 382-Courts Ordinance, No. 1 of 1889, s. 73-Criminal Procedure Code, s. 387.

Under section 387 of the Criminal Procedure Code the Attorney General has large powers of commitment; and the Supreme Court will not interfere with his discretion unless such discretion has been manifestly abused.

The accused were committed for trial before the District Court on an indictment containing a charge of robbery under section 380 of the Penal Code. The evidence disclosed that the accused had also committed hurt in the course of the robbery, an offence punishable under section 382 of the Penal Code and triable only by the Supreme Court. The accused were convicted by the District Court under section 380 without any objection to the jurisdiction of the Court being raised. In appeal it was objected on their behalf that the District Court had no jurisdiction to try the case, as the evidence disclosed an offence punishable under section 382 and triable only by the Supreme Court. 

Held, that it was open to the Attorney-General in the circumstances to commit the accused to the District Court, and that the District Court had properly tried the case.

Held, that it was open to the Attorney-General in the circum Ordinance, No. 1 of 1889, such objection should have been taken, in the Court below immediately upon arraignment and before plea.

APPEAL from a conviction by the District Court under section 380 of the Penal Code.

The facts sufficiently appear in the judgments

Dornhorst, K. C., for accused-appellants.

Van Langenberg, A. S.-G.., for the Crown.

Cur. adv. vult.

4th August, 1905. LAYARD, C.J.-

After hearing the appellants' counsel in this case I intimated that as the District Judge after carefully considering the case had believed the story for the prosecution I could not, sitting in appeal reverse his finding on facts, as I had not the advantage the District Judge had of hearing the evidence and seeing the witnesses in the box. The appellants' counsel then applied to me to set aside the verdict of the District Judge and quash the proceedings at the trial and send the case for trial before this Court and a jury. I informed him that I was not prepared to do so.

Later on in the day appellants' counsel suggested to me that the facts proved at the trial disclosed an offence under section 382 of the Penal Code, which involved a very severe punishment, and pointed out an offence under that section could only be tried by the Supreme Court. It is quite true that the appellants ought to have been indicted under that section by the Attorney-General, and if they had been indicted under that section, the commitment could have only been to the Supreme Court.

The Attorney-General has elected under the powers vested in him under section 387 of the Criminal Procedure Code to commit the appellants for trial before the District Court. In respect of offences triable by that Court, it is admitted by the appellants' counsel that the Attorney-General had that power, and that the District Court had jurisdiction to try the indictment-presented, by the Attorney-General and could not refuse to try the case.

It is, however, argued that this Court sitting in appeal is not bound by the Attorney-General's election. If the Attorney-General had manifestly abused the discretion left him under section 387 I have no doubt this Court could interfere in appeal, as suggested by the appellants' counsel. I think, however, in this case there is no reason to think that the Attorney-General has not exercised a wise discretion. It appears to me the punishment that the District Court could inflict is complete and sufficient, and I do not think tha