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Present: Ennis J.
GUXASEKERA v. ARSECULARATNE et ah6&—P.C. Kalutara, 3,213.Criminal Procedure Code, ss. 187 and 425—Charge not /rained tilt close ofcase for prosecution—Search tear rant directing search forthwith—Search not effected for some weeks but within, returnable date—Issearch good ?—Forthwith—Gaming Ordinance, s. 7.
The fact that the evidence for the prosecution was ciosed beforea charge was framed was held not to have vitiated the* proceedings,as the accused was not prejudiced thereby.
A search warrant was issued under section 7 of the GainingOrdinance, 1889, on March 28, and was returnable on April ill).The warrant directed to enter “ forthwith ” and search the house-specified. The search was not effected till Aprjl 19.
Held,, that the warrant was valid and that the search was not■effected “forthwith.”T
“ The Magistrate by specifying the time within which the warrantshould be returned had . considered what the warrant meant in•directing an act to be carried out forthwith.”
T HE facts are set out in the judgment.
H. J. C. Pereira, K.C. (with him D.. T Fernando), for theappellants.
IlUmgakoon, C.C., for the Grown.
February 22, 1924. Ennis J.—
This is an appeal from convictions for gaming. Tt appears,thateach ,of the accused was sentenced to a fine of Rs. 100, and, inaddition, the second, fourth, and seventh accused were given onemonth's .rigorous imprisonment, because they had been previouslyconvicted of the same offence. It was' urged on appeal that theprovisions of section 187 of the Criminal Procedure Code had not beencomplied with, and that the accused were not charged before the casefor the prosecution was closed. It this connection too caseswere cjted—Denois v. Charles 1 and Bex v. Silvd.~ In both thesecases attention was drawn to the fact that a failure to frame acharge would vitiate the proceedings. This case* is not on allfours with either of those cases; for in this case a charge wasframed. Moreover, the accused cross-examined all the witnesses,
24 Bed. Notes of Cases 53.
, 2 5 Bal. Notes of Coses $3.
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and himself led evidence after having pleaded to the charge. Thefact that the evidence for the prosecution was closed beforethe charge was framed was no doubt an irregularity, but it does notvitiate the proceedings, as the accused was in no way prejudiced.The next point raised on appeal was that the search warrant, whichwas issued under section 7 of the Ordinance, had no force or effectat the time the search was carried out. There appeared at firstconsiderable force in this suggestion. The warrant is in the form Afound in the Code. But it bears ho date, which is quite consistentwith the fact that no provision for a date is made in the form. Atthe foot of the warrant there appear the words “ returnable onApril 20, 1923." It appears from the evidence that the warrantwas applied for and issued on March 26, 1923, and it was urged that,inasmuch as the warrant directs the officer to whom it is addressedto “ forthwith " enter and search the house specified* to wait untilApril 19 before carrying out the search was not a compliance withthe warrant, and that the warrant must be held at that time to havebeen time-expired. The case of Lexvis Pitlai v. Chelliah 1 wascited to show that the Ordinance is a strict Ordinance, and thatthere must be a strict compliance with the provision in connectionwith the issue of warrants. Then, again, Soysa v. Anglo-Geylon andGeneral Estates Company2 was cited to show that the words“ forthwith *9 should be construed as meaning “ without any delaythat can possibly be avoided,” and it was urged that in this casethat there was a delay which could not be said to be unavoidable.It is much to be regretted that the warrant bore no date other thanthe returnable date, and it is also to be regretted that so long a timewas allowed within which this warrant could be carried into execu-tion. But I have considered, this question closely, and I have come'to the conclusion that the warrant was still valid, and that theMagistrate by specifying the time within which the warrant should*be returned had considered what the warrant meant in directing anact to be carried out forthwith. On the merits of the case I see noreason to interfere. There is a very strong judgment on the facts.The defence practically was that this was. a private new year's party,and that the people gathered there were friends. The presumptioncreated by the Ordinance must be rebutted, and in this case thepresumption has not been rebutted, because the only evidencecalled for the defence, namely, the first accused, has been emphati-cally disbelieved. In the circumstances 1 see no reason to interferewith the convictions or sentences, and dismiss the appeals.
i 3 Bal. Notes of Cases 54.2 (1915) 19 N. L. R. 374.
GUNASEKERA v. ARSEECULARATNE et al