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NADA RAJAH v. GOPALAN P.C.
NLR32V115
1930
[IN REVISION.]
Present: Dalton J.
NADA RAJAH v. GOPALAN.
P. C. Mullaittivu, 10,890.
Criminal Procedure Code, s.
152 (3)-Summary trial by police Magistrate as District Judge- Where accused has
previous convictions-Prevention of Crimes Ordinance, No. 2 of 1926, s. 6 (2).
Quaere, whether a Police Magistrate, who is also District Judge, trying an
accused person summarily, under section 152 (3) of the Criminal Procedure Code,
is bound to discontinue summary proceedings on receipt of a certificate under
section 6 (2) of the Prevention of Crimes Ordinance to the effect that the
accused is a registered criminal.
APPLICATION
for revision by the Solicitor-General.
Crossette Thambiah, C.C., in support.
December 2, 1930. DALTON J.-
This is an application by the Solicitor-General on behalf of the complainant, in
revision. The respondent does not appear.
The application sets out that the respondent was charged with housebreaking by
night and theft of jewellery. The Police Magistrate, being also a District Judge
having jurisdiction to try the offences, was of opinion that the offences might
properly be tried summarily. He set out his reasons for his conclusion, and
thereupon tried the respondent under the provisions of section 152 (3) of the
Criminal Procedure Code. Upon being charged he pleaded guilty. The Judge then
remanded him for identification. Subsequently, it having been certified that
respondent had at least twice previously been convicted and sentenced to not
less than a year's rigorous imprisonment, respondent admitted the previous
convictions and was then sentenced to one year's rigorous imprisonment and four
years' preventive detention.
The Solicitor-General now asks
that the proceedings be set aside and the case be remitted to another Magistrate
to take non-summary proceedings.
It is argued for the Solicitor-General that the trial Judge should have acted
under the provisions of section 6 (2) of Ordinance No. 2 of 1926, and on receipt
of the certificate in respect of the finger prints, have discontinued the
summary proceedings and commenced non-summary proceedings.
The section however only refers to a Police Magistrate. In this case the summary
trial was by a District Judge who had complied with all the requirements of the
law to clothe himself with all the powers and jurisdiction of that office. Was
he any more for the purpose of this case a Police Magistrate ? Was he not for
the nonce nothing more or less than a District Judge ? His original appointment,
it must be remembered, is Police Magistrate and District Judge, and not Police
Magistrate only. Does section 6 apply to a District Judge who also happens to be
a Police Magistrate, acting under section 152 (3) ? '
The Judge in this case appears to have been in two minds. After trying the case
summarily as District Judge, he appears to have applied sub-section (1) of
section 6 by having the finger prints taken. When the certificate is however
obtained, he does not apply the provisions of subsection (2) but at once
proceeds to sentence the respondent.
Mr. Thambiah has referred me to Ordinance No. 8 of 1896, which set out the law
as it stood before the enactment of section 152 (3) of the Code. That Ordinance
seems to me to provide in fairly definite terms that a Police Magistrate who
acts under the provisions of that Ordinance and tries a case as a District
Judge, completely rids himself, so far as that particular case is concerned, of
his character or quality of Police Magistrate and is nothing more and nothing
less than a District Judge with all the powers of such an officer. Crown Counsel
agrees with me there, but he suggests that section 152 (3) makes a change in
that respect. Section 152 (3) of the Criminal Procedure Code takes two sections
of that Ordinance and in fewer words appears to me to re-enact the provisions of
the Ordinance. I cannot see the change that is sugge
