[FULL BENCH.]

Present : Bertram C.J. and Ennis and De Sampayo JJ.

SEDRIS v. SINGHO.

797-P.C. Panadure, 71,293.

Village Tribunal-Exclusive jurisdiction-Petty thefts-When jurisdiction of Police Court is ousted-Ordinance No. 24 of 1889, ". 28 -Prosecution by police-Has Village Tribunal jurisdiction ?- " Native "-Crown.

The jurisdiction of a Police Court with regard to petty thefts is not ousted, unless it is shown, not only that the property stolen exceeds Rs. 20 in value, but also that the offence can be adequately punished by a Village Tribunal.

It is within the jurisdiction of a Police Magistrate to determine whether, in his opinion, the case is one which could adequately be dealt with by a Village Tribunal; it is not necessary that it should appear on the record that the Magistrate formally addressed himself to this question.

THE accused in this case was charged in the Police Court with theft of a bull valued at Rs. 18, and convicted. ENNIS J. referred the case to a Bench of three Judges.

E. W. Jayawardene (with him Navaratnam), for appellant.-

The jurisdiction conferred on Village Tribunals by section 28 of Ordinance No. 24 of 1889 is exclusive (section 34). Petty thefts as defined in that section are:-

(a) Thefts where the property stolen does not exceed in value Rs. 20;

(b) Thefts which are not preceded or accompanied by violence to the person.

The relative clause, "which may be punishable by no higher punishment than a fine of Rs. 20, or rigorous imprisonment for two weeks," refers to the second part only. As soon as the Police Magistrate finds that the value of the property stolen is less than Rs. 20, he must refer the case to the Village Tribunal under section 34. He should not exercise jurisdiction, inflict punishment, and then say that the offence is not adequately punishable by the Village Tribunal.

[DE SAMPAYO J.-Is theft of cattle petty theft ? It is an offence punishable with whipping under the Penal Code.]

In Varlis v. Don Daviih et al. (428-430, P. C. Matara, 21,027)[1 S C Min., July 7,1920.] accused charged with the theft of a bull worth Rs. 20 was sentenced to six months' imprisonment. But the Supreme Court held in appeal that the Village Tribunal had exclusive jurisdiction.

Ranghamy v. Yahapathhamy[1] does not apply, as by consent of parties it was referred to the Police Court.

If, for the sake of argument, it be taken that the relative clause applies to both parts, then the Police Magistrate must, before proceeding to try the accused, inquire whether the offence is one triable by the Village Tribunal, and, if so, must at once refer the parties to the Village Tribunal.

Jansz, C.C., for Crown, respondent.-When the complaint is made by a police officer under section 148 (6), Criminal Procedure Code, the Police Magistrate gets ipso facto jurisdiction. The word " parties " in section 28 means parties in private prosecutions, and does not apply to police prosecutions. In such prosecutions the Crown is the real prosecutor, and so Village Tribunals have no jurisdiction (Munasinghe v. Sinnappu [2] and Cornells Appu v. Endoris Appu, P. C. Matara, 21,428 [3]). Theft is a cognizable offence under the Penal Code. In Seneratne v. William Sinno[4] theft of an article worth Rs. 4.50 was held to be an offence of a serious nature and triable by the Police Court.

In the present case the charge should properly be under section 368, Criminal Procedure Code, which provides for whipping in addition to any other punishment. If the relative clause applies to the latter part of section 28 only, the word " which " is superfluous. Also as Village Tribunals cannot impose imprisonment, except in default of payment of fine, an accused committing theft of an article worth Rs. 20 could escape with a fine of Rs. 20. Counsel also cited Arasaratnam v, Nallaiah et al;[5] and contra Carolis v. Fernando,[6] Appuhamy v. Louisa,[7] and Goonetilleke v. Punchi Singho.