William perera Et Al., V. Inspector Of Police

1949 Present : Windham J. and Gratiaen J.

WILLIAM PERERA et al., Appellants, and  INSPECTOR OF POLICE, MAHARAGAMA, Respondent

S. C. 375-376-M. C. Colombo South, 20,548

    Criminal Procedure Code-Magistrate assuming jurisdiction as District Judge-Replaced by another Magistrate after commencement of proceedings-Successor continues proceedings without independent decision to act under Section 152 (3)-Conviction not vitiated-Sections 152 (3) and 292-Courts Ordinance, Section 88.

   Magistrate G, without proceeding to hear any evidence, recorded: " I peruse the B reports and as facts are simple I assume jurisdiction as Additional District Judge ". The accused were thereupon charged and the hearing of the case was adjourned. By the time of the adjourned hearing Magistrate G had been transferred, and Magistrate W, his successor, who was also an Additional District Judge, proceeded to record the evidence and eventually to convict the accused.

  Held, (i) that there was a proper assumption of jurisdiction by-Magistrate G under section 152 (3) of the Criminal Procedure Code

   (ii) that by virtue of section 88 of the Courts Ordinance, proceedings before the successor Magistrate W were not vitiated by the fact that he himself did not record his independent decision that he was. electing to try the case summarily in accordance with section 152 (3V of the Criminal Procedure Code.

CASE referred by Wijeyewardene C.J. to a Bench of two Judges for the determination of a point of law and procedure.

C. E. Jayewardene for accused appellants.

H. A. Wijemanne, Crown Counsel, with A. Mahendrarajah, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

October 27, 1949. WINDHAM J.-

  This matter comes before us for the determination of a point reserved a point of law and procedure arising out of the proper interpretation of section 152 (3) of the Criminal Procedure Code. The facts, in so far as they affect the point reserved, were as follows. The accused-appellants were charged with house-breaking and theft, and the first accused was also charged with dishonestly retaining stolen property. The case came up for trial before the magistrate, Mr. Gunawardene, on January 5, 1949, on which date, without proceeding to hear any evidence, he recorded-- I peruse the B reports and as facts are simple I assume jurisdiction as A.D.J. ". It is undisputed that by these words the learned magistrate, who was also an Additional District Judge, was assuming Jurisdiction to try the case summarily, with the powers of punishment of a District Court, under section 152 (3) of the Criminal Procedure Code. Section 152 (3) reads as follows: -

   " 152 (3). Where the offence appears to be one triable by a District Court and not summarily by a Magistrate's Court and the Magistrate being also a District Judge having jurisdiction to try the offence is of the opinion that such offence may properly be tried summarily, he may try the same summarily following the procedure laid down in Chapter XVIII and in that case he shall have jurisdiction to impose any sentence which a District Court may lawfully impose ".

    After the recording of the above words by the magistrate, the accused were charged from summary form No. 1B. This completed the hearing on January 5. By the time of the adjourned hearing, on February 2, 1949, Magistrate Gunawardene had been transferred, and Magistrate Wijesekera his successor, who was also an Additional District Judge, proceeded to record the evidence and eventually to convict the accused.

   The point referred for our decision is whether the proceedings before Magistrate Wijesekera were vitiated by the fact that he himself did not record his independent decision that he was electing to try the case summarily in accordance with section 152

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