Simon Wijeratne V. Ratnayake

1950   Present  : Jayetileke C. J. and Pulle J.

SIMON WIJERATNE, et al., Appellants, and RATNAYAKE (S. I. Police), Respondent

S. C 26-27-M. C. Kalutara, 3,639

Criminal Procedure Code-Indictable offence-Assumption of summary jurisdiction by Magistrate-Evidence on oath not a condition precedent for forming necessary opinion-Sections 121 (2), 150 (1), 152 (3).

The opinion referred to in section 152 (3) of the Criminal Procedure Code can be based on a report sent to the Magistrate by the Police under section 121 (2). If there is material before the Magistrate on which he can form the opinion that the case is one which may properly be tried summarily, it is open to him to base his opinion upon it without taking evidence on oath.

APPEAL from a judgment of the Magistrate's Court, Kalutara. This appeal was referred by Jayetileke C. J. for decision by a bench of two Judges at the request of Gunasekara J.

M. M. Kumarakulasingham with J. C. Thurairatnam, for accused appellant.

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

Cur. adv. vult.

July 31, 1950. JAYETILEKE C. J.-

This appeal was referred by me for decision by a bench of two Judges at the request of Gunasekara J.

The question that arises for decision is whether the opinion referred to in Section 152 (3) of the Criminal Procedure Code can be based on a report sent to the Magistrate by the Police under Section 121 (2) of the Code. Section 152 (3) reads: -

" Where the offence appears to be one triable by the 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 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. "

In Silva v. Silva 1[1 (1904) 7 N. L. R. 182.] it was held by a Divisional Bench that a Magistrate acting under Section 152 (3) shall state his reasons for the opinion that the offence may be properly tried summarily and that his opinion is subject to review by the Supreme Court. Middleton J. said: -

" Any case which cannot be tried shortly and rapidly in point of matter and time which involves any complexity of law, fact or evidence, and double theory of circumstances, a very difficult question of intention or identity or in which the punishment ought really to exceed two years is one that is not properly triable summarily. "

In the present case Sub-Inspector Ratnayake of Tebuwana sent to the Magistrate a report under Section 121 (2) of the Code dated June 17, 1949. (hereinafter referred to as B report) which reads: -

" I, C. A. B. Ratnayake, Sub-Inspector of Police of Tebuwana, hereby report that I have inquired into the complaint of O. M. David Appuhamy of Nahalla made on June 16, 1949, at about 2 or 3 a.m. While he was sleeping in his boutique he was put up by Singho Appu who was also sleeping with him. He flashed his torch and saw Simon Wijeratne, Sugathan and another unknown man inside the house. Sugathan snatched his torch and the unknown man dealt two blows on Singho Appu and threatened him not to get up. Sugathan took clothes from the almirah, and gave to the other two accused. In the meantime Udenis Appuhamy, the father of the complainant, got up and Simon Wijeratne threatened to cut him with a sword. They shouted and the accused went away with clothes, &c, valued at Rs. 307. They found a breach had been made on the house wall. The offences are punishable under Sections 443 and 369 of Cap. 15, Volume I of the L. E. C. On receipt of the information Police visited the scene and made inquiries. In this connection Police arrested Don Simon Wijeratne of Nahalla. They move that he be remanded till June 23, 1949, pending the completion of the inquiry ".

On June 23, 1949, he insti

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