Madar Lebbe V. Kiri Banda Et Al.,

[FULL BENCH.]

1915.  Present  : Wood Renton C.J. and Ennis and De Sampayo JJ.

MADAR LEBBE v. KIRI BANDA et al.

1,518-23-P. C. Kandy, 203.

Criminal Procedure Code, section 152 (3)-Police Magistrate acts as Magistrate, and not at District Judge, when exercising the power*' conferred by this section-He may act under this section even when accused is charged with offences some of which are triable summarily and others by a District Court.

A Police Magistrate who is also a District Judge, when exercising the punitive powers conferred upon him by section 163 (3) of the Criminal Procedure Code in respect of offences triable by a District Court and not summarily by a Police Court, acts as a Police Magistrate, and not as a District Judge. If the offence is one triable by the Police Court, the Police Magistrate has jurisdiction without any reference to section 152 (3), and if he arrogates to himself higher punitive powers by purporting to act under that provision, the infliction of any punishment beyond the Police Court limit does not by itself vitiate a conviction, but it is an irregularity which may be cured as regards the sentence by the interference of the Supreme Court in revision.

There is no objection to a Police Magistrate applying section 152 (3) to a case where an accused is charged with several offences, some of which are triable summarily by the Police Court and others are not, provided he inflicts no higher punishment in respect of the lower offences than he has ordinary jurisdiction to impose.

NON-SUMMARY proceedings were taken against the accused under sections 140, 144, 146, and 439 of the Ceylon Penal Code. On an adjourned trial date the accused were informed by the Police Magistrate that they would be tried summarily by him in his capacity as District Judge, under section 152 (3) of the Criminal Procedure Code. After trial they were connoted under sections 140 and 144, and acquitted under sections 146 and 439. The first accused was sentenced to six months' rigorous imprisonment under section 140, and two years' rigorous imprisonment and a fine of Rs. 2,500, in default an additional six months' rigorous imprisonment, under section 144. The second, third, fourth, and sixth accused

were sentenced to six months' rigorous imprisonment under section 140 and two years' rigorous imprisonment under section 144. The fifth accused was bound over to be of good behaviour and to keep the peace for six months.

Bawa, K.C. (with him Dias), for the accused, appellants.-The charge under section 140 of the Penal Code being one triable by a Police Court as well as by a District Court, it was not competent for the Police Magistrate to try such charge as District Judge under sub-section (3) of section 152 of the Criminal Procedure Code.

Counsel referred to 1,423-1,424-P. C. Balapitiya, 41,272,1[S. C. Mins., Sept. 21, 1915.] and to 1,087-P. C. Kandy, 97.2[18 N. L. R. 374.]

In any event, where accused are charged with several offences, all the offences must be " triable by a District Court, and not summarily by a Police Court, " to enable the Magistrate to act under section 152 (3).

In this case the offence under section 140 was triable by a Police Court, and under section 144 was not triable summarily by a Police Court. In such a case as this, it is not open to a Magistrate to act under section 152 (3). The term "offence" in section 152 (3)* includes the plural, according to the Interpretation Ordinance. But it cannot be made to refer to some only of the offences with which the accused are charged. Where there are many offences, we must read " offences " instead of the word " offence.

V. Grenier, Crown Counsel, for the Crown (not called upon).

Cur. adv. vult.

October 29, 1915. WOOD RENTON C.J.-

This case was fully argued before me on October 22, and I should have had no difficulty in giving my decision at the close of that argument. But I though

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