ABRAHAMS C.J.—Abeysekera v. Goonewardene.
1938Present: Abrahams C.J.
ABEYSEKERA v. GOONEWARDENE.
115—P. C. Galle, 16,715.
Charge—Written complaint by Inspector of S. P. C. A.—Appearance of accusedwithout service of summons—Absence of charge—Fatal— irregularity—Criminal Procedure Code, ss. 148 (I), 149, 187 (I).
On a written complaint by the Inspector of the Society for the Preven-tion of Cruelty to-Animals, who was not examined on oath, the Magistrateissued summons on the accused, who appeared before service of summons.The Magistrate thereupon charged the accused from the written com-plaint.
Held, that the written complaint was not a report within the meaningof section 148 (1) of the Criminal Procedure Code and that the absenceof a charge was a fatal irregularity.
PPEAL from a conviction by the Police Magistrate of Galle.
Colvin R. de Silva, for accused, appellant.
E. H. T. Gunasekere, C.C., for complainant, respondent.
Cur. adv. vult.
March 7, 1938. Abrahams C.J.—
The appellant was convicted of cruelty to a bull under section 4 (1) (a)of the Prevention of Cruelty to Animals Ordinance, No. 13 of 1907. Heappeals against this conviction on the ground that the proceedings againsthim were improperly conducted. It would appear that an. Inspector ofthe Society for the Prevention of Cruelty to Animals stated in writing butnot on oath, that the accused seriously injured the neck of a bull andtherecommitted an offence in breach of section 4 (1) (a) of OrdinanceNo. 13 of 1907. He cited five witnesses and signed himself as ‘“Com-plainant, Inspector, S. P. C. A. ”. On the strength of this the Magistrateappears to have issued a summons, but the summons never reached theaccused who turned up in Court to answer any charge that might havebeen brought against him. The Magistrate then stated that he hadcharged the accused from the plaint, proceeded to try him and convictedhim.
Now this statement in writing of the Inspector of the Society cannot beregarded as a written report from which proceedings can be institutedunder section 148 (1) (b) of the Criminal Procedure Code because anInspector of the Society for the Prevention of Cruelty to Animals is notan inquirer, a peace officer, a public servant, a municipal servant or alocal board servant. It appears to me that the most that can be said ofthis document is that it was an unsworn complaint and as such, proceed-ings cannot be instituted under it, as the complainant was not examinedon oath as the provisions of section 149 require. Moreover, even had theplaint been in due form, there cannot be said to have been any chargeframed under the provisions of section 187 (1) if the fact of the accusedhaving come to the Court of his own accord can be brought within theterms of that sub-section. It follows then that the accused was triedwithout the necessary preliminary of a charge, for there does not appearto be any provision of law under which these proceedings could be held to
FERNANDO A.J.—Fernando v. Peiris.
have been properly conducted, and the fact that the ingredients of theoffence, for which he was tried, were contained in the unsworn complaintof the Inspector of the Society does not constitute a charge framed inaccordance with the terms of the Ordinance. There is then the absenceof a charge and there is ample authority that the absence of a'chargevitiates the proceedings and that is. admitted by learned Counsel for theCrown./
The trial was illegal ab initio and there is nothing for me to do but toquash the proceedings and express regret that the Magistrate should nothave made himself acquainted with the terms under which a trial has tobe conducted in each individual case.
ABEYSEKERA v. GOONEWARDENE