1942 Present: Moseley S.P.J., Soertsz and Wijeyewardene JJ.

TENNEKOON v. MARADAMUTTU.

615-22-M. C. Hatton, 1,034.

Criminal Procedure-Summary trial-Addition of fresh charge--Assumption of jurisdiction as District Judge-Reading over of evidence of witnesses to accused-Criminal Procedure Code, s. 152 (3).

Where a Magistrate who has started summary proceedings on charges which he can try summarily adds a charge of such a nature that, unless he assumes jurisdiction under section 152 (3) of the Criminal Procedure Code, he cannot try the case summarily, he is not bound to start proceedings de novo.

Gressy v. Direckze (6 N. L. R. 33) followed.

Sub-Inspector of Police Alles v. Charles Appuhamy (20 C .L. W, 100) overruled. .

CASE referred by Nihill J. to a Bench of three Judges.

The facts are stated in the reference as follows: -In this case the thirteen accused-appellants were charged before the Magistrate of Hatton with offences involving unlawful assembly and simple hurt. The Magistrate proceeded to try the accused summarily. After hearing tour of the witnesses for the prosecution and the medical evidence he amended the charges so as to include a charge of rioting under section 144 of the Penal Code. This is an offence which is not triable summarily and the Magistrate realizing this and being an additional -District Judge assumed jurisdiction under section 152 (3) of the Criminal Procedure Code.

His note on the record is as follows :-" At this stage I amend the charges. The charge of rioting will make the offence non-summary. I however decide to try this case as District Judge. Charges under sections 140, 146, 314/144, and 314 are read and explained to the accused from the charge sheet and their pleas recorded ".

Thereafter, the evidence of the witnesses who had already been called was read over to the accused and they were tendered for further cross-examination.

The main point taken by Mr. Rajapakse for the appellants is that the procedure adopted did not comply with the provisions of section 189 of the Criminal Procedure Code in that having discontinued summary proceedings and initiated proceedings under section 152 (3) the Magistrate should have recorded the evidence de novo and not read over the depositions made in the summary trial. There is authority for this proposition in the recent case of Alles 'P. Charles Appuhamy 1[(1941)20C.L.W.100] in which Moseley J. so held.

Mr. Chitty for the Crown has contested the correctness of that decision and has called my attention to the case of Gressy v. Direckze[(1901)6N.L.R.33 ]" in which Wendt J. held that a conviction resting on such procedure was not bad as the accused was on his trial from the commencement and had the fullest opportunity to cross-examine the witnesses; In that case a charge laid for simple hurt was converted into one of grievous hurt when the Magistrate assumed jurisdiction under section 152 (3).

A similar case reported in the same volume of the: New Law Reports is that of Abdul Cader v. Fernando [(1902) 6 N. L. R. 95]. Here the additional point was taken that the assumption of the enhanced jurisdiction was taken at too late a stage but overruling this, Moncrieff A.C.J. did not question the regularity of the proceedings themselves.

Now these are decisions of this Court taken some forty years ago and I have therefore had to consider whether amendments made to the Criminal Procedure Code in recent years have resulted in a change of the law.

Section 189 was amended by section 13 of Ordinance No. 13 of 1938, and now reads as follows:-

189. (1) When the Magistrate proceeds to try the accused take in manner hereinafter provided all such as may be produced for the prosecution or respectively.

(2) The accused shall be permitted to cross-examine all witnesses called for the prosecution and called or recalled by the Magistrate.

(3) The complainant and accused or their pleaders shall be ent