1936 Present: Akbar S.P.J.

GOONERATNE v. MAHADEVA.

83-P. C. Colombo, 38,414.

Criminal Procedure-Power of Police Magistrate to try accused summarily as District Judge-Appointment of Magistrate-Notification by Attorney-General-Presumption regarding official acts-Evidence Ordinance, s. 114 -Criminal Procedure Code, s. 152 (3).

A Police Magistrate, who is also District Judge, has power to try summarily under section 152 (3) of the Criminal Procedure Code an accused person against whom he has taken non-summary proceedings in respect of the same offence.

Where a notification appeared in the Government Gazette signed by the Attorney-General to the effect that H. E. the Governor had appointed a certain person to act as Police Magistrate during a stated period,-

Held, that a Court would presume that the appointment was regularly made.

APPEAL from a conviction by the Police Magistrate of Colombo.

H. V. Perera (with him N. E. Weerasooria, N. Nadarajah, and de Jong), for accused, appellant.

J, E. M. Obeyesekere, Deputy S.-G. (with him H. W. R. Weerasooriya C.C.), for Crown, respondent.

July, 1936. AKBAR S.P.J.-

Mr. H. V. Perera who appears for the accused-appellant has taken two objections to the conviction and sentence passed on the accused in this case, both on the law.

The first objection was a serious one as it went to the question of jurisdiction of the Magistrate to try the case at all. It appears that non-summary proceedings were taken against the accused who is a proctor, the charge being one of criminal breach of trust of a sum of Rs. 750 entrusted to him by a corporation in his capacity as agent of that corporation. After some evidence had been led, the learned Additional Police Magistrate on January 22, 1936 (because he was  a District Judge having jurisdiction to try the offence), although the offence was not otherwise summarily triable by a Police Court, took

summary proceedings, stating as his reason that it was expedient to do so, and purporting to act under section 152 (3) of the Criminal Procedure Code. The learned Magistrate framed a charge against the accused to which he pleaded " guilty ". His counsel, Mr. R. L. Pereira K.C., moved for leniency in view of the fact that the accused would anyhow forfeit his professional career and that the money was paid back at the end. The learned Judge refused to treat the accused as a first offender under section 325 of the Criminal Procedure Code and sentenced him to a term of six months' rigorous imprisonment.

Mr. Perera argues in the first place that the Magistrate had no jurisdiction on January 22, 1936, to act as Police Magistrate, Colombo, with powers also to act as District Judge. He took the objection on the ground that Mr. J. N. Arumugam had been appointed Police Magistrate, Colombo, to officiate from January 18, 1936, and that Mr. Manders as Additional Police Magistrate had no power to act as Magistrate. Reference was made to the Courts Ordinance, sections 55, 56, and 57. I did not at that time think that there was much substance in this argument because whether he was Magistrate or Additional Magistrate, he had concurrent jurisdiction with Mr. Arumugam.

Mr. Perera then took another objection, namely, that Mr. Manders had not been appointed by the Governor as required by section 56 of the Courts Ordinance, to act as Magistrate on January 22, 1936. If Mr. Manders had not been appointed Magistrate on January 22, 1936, as the learned Deputy Solicitor-General admitted that he (Mr. Manders) had ceased to act as Magistrate on January 18, 1936, then obviously Mr. Manders had no jurisdiction to try this case. But a Gazette Notification has been produced by the learned Deputy Solicitor-General, published in the Government Gazette of January 31, 1936, which contains a notification dated January 27, 1936, and signed by the Acting Attorney-General announcing the fact that His Excellency the Gover