Present ; Schneider J.
Kalin guh a my ®. porolis appu.
. 236—P. C. RaXnapura, 20,200.
Criminal Procedure Code, m. 152 and 149—Magistrate also DistrictJudge—Not complying ioith the provisions of section 149—Isirregularity fatal f
Before a Magistrate, who is also a District Judge, exercises hispowers under section 152 (3), he should comply with the provisionsof section 149. The omission to- comply . 'with provisions ofsection 149 is not fatal, but is an irregularity which come; withinthe provisions of section 425.rp HR facts appear from the judgment.
J. C. Pereira, K.C. (with him H. L. Pereira), for appellant.
E. W. Jayawardene, for respondent.
June 9, 1922. Schneider J.—
The only question! need address myself to is whether the failureof the learned Magistrate to comply strictly with the provisions ofsection 152 (3) of the Criminal Procedure ;5Code uras one fatal to theconviction. The first omission*consisted' in not complying with the' provisions, of section 149 (1) of the Criminal Procedure Code, whichdirects that in a case of this nature he should forthwith examine onoath the complainant or informant:It is. undoubtedly the intention
of the Code that before a Magistrate, who fs also a District Judge,exercises his powers under section 152 (8),: he should comply with theprovisions of section 149. In two cases (Heyzer v. James Silva1and Mokamado. v. Aponsu a), this Court had regarded such • anomission as fatal to'the conviction, but these two: cases, were con*
. eidered in 1.918 in the case of Abanchihamy v. Peter, * where.it washeld by a Court of two Judges that the omission to comply . with theprovisions of-section 149 is not fatal, but is an irregularity; domingWithin the provisions of section 425 of the Criminal. ProcedureCede. The learned Magistrate who tried this case has taken great,pains with the trial, has held an exhaustive inquiry, has appreciatedthe evidence put before him, and I have no doubt arrived at a correctverdict. In these circumstances, I do not think the omission • tostrictly comply with the provisions of section 152 (3) is a fatalirregularity. It is an irregularity which has not occasioned anymiscarriage of justice.
The appeal is dismissed.
»[1915) 1 C. W. R. 136.* [1916) 1 C. W. R. 170.
3 [1918) U Jf. L. R. 15; 5 C. W. R. 55.
KALINGUHAMY v. POROLIS APPU