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Present: Bertram C.J.
KANAGASINGHAM t>. TAMBYAH.
143—P. C. Trincomalee, 3,938,
Criminal Procedure Code, a. 88—Habitual offenders—Security to be ofgood behaviour—Summons or warrant must contain a brief statementof information against party summoned, and state under whichsub -head of section 83 he comes,
Whero proceedings ore token under section 83 of the CriminalProcedure Code against a person, the summons must contain abrief statement of the substance of «'he information on whichsndi summons is issued. It should state specifically under whichof the heads dealt with by section 83 the person summoned isunderstood to come—whether he is a habitual offender, notorioushad liver, dangerous character, he,
fJ^HE facts appear sufficiently from the judgment.
8. Jayawardene, for accused, appellant.
March 15, 1923. Bertram C.J.—
There is no doubt that chapter VII of the Criminal ProcedureCode, in particular section 83 of that chapter, is capable of the mostsalutary use, but its provisions are of a very special character, andthe precautions which the chapter requires ought to be very care-fully observed. I have little doubt that in this case the learnedMagistrate, who saw the man before him in the box, rightlyconsidered him to be an insolent and insubordinate person, andone who is to some extent, at any rate, a nuisance in the neighbour-hood. It appeal's to me, however, that there are certain daws inthe proceedings which are of an important character. Section 83pxpvides that where a Police Magistrate receives information thatany person within the local limits of his jurisdiction is, amongstother things, a notorious bad liver or a dangerous character, he may,in manner hereinafter provided, issue a summons or a warrantrequiring the person to appear, and section 85 particularly saysthat every summons or warrant must contain a brief statementof the substance of the information on which such summons orwarrant is issued. The Magistrate, therefore, before he acts at all,must receive certain information, and he ought to see that thatinformation is of a very definite character. It may no doubt be ofa general character, because if a man is charged with being a badliver or a dangerous character, and the character he bears has to beproved by evidence of general repute, it would be necessary to state
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the 'characteristics complained of in somewhat general termB. But 10B&.these characteristics complained of should be precisely stated, and,if possible, defined and described. If it is intended when he comes OJ.before the Court to show that he is a notorious drunkard, that he Kanaga -is a bully, that he assails persons and terrifies them so. that they areafraid to go into Court, that he interrupts public functions, that heis offensive to respectable people in the streets; these things shouldbe specified. When the man comes into Court, the chapter thinksit necessary that he should understand the nature of the case he iscalled upon to meet. Now, in this case the summons was preciseenough. It charged the man with three offences: one committedon March 1, 1922, the other on June 19, 1922, and the other onAugust 3, 1922. The summons itself was dated November 7, 1922.
A man receiving this summons would suppose that all that he hadto do in Court was to defend himself with regard to these threematters mentioned. Further, the summons should state speci-fically under which of the heads dealt with by section 83 the manis understood to come, that is to say, whether he is a habitualoffender, a person who habitually commits extortion, a personwho harbours or protects thieves, a person who habitually concealsthe disposal of stolen property, or a* notorious bad liver or a danger-ous character. It should be clearly explained to him what is thecharacter under which he is brought before the Court.
In the present instance the summons, though very precise,was, in this respect, defective. It did not specify that he was abad liver or a dangerous character. I lay no emphasis on thisdefect, however, because when he came before the Court he wasdefinitely charged with being a dangerous character or a noto-rious bad liver. At the trial one of the three offences had to beeliminated, because no evidence was available, so that the caseagainst him was reduced to the two offences specified. The evidence,however, was not confined to the two matters. General evidencewas given that he was a habitual drunkard and a notorious bully,and further evidence was given with regard to transactions sub-sequent to the institution of the proceedings. In point of fact thegeneral evidence and the evidence given with regard to mattersoccurring after the institution of proceedings was, on the whole,more forcible than the evidence given with regard to the two epi-sodes specified in the summons. It is so important that theseproceedings1 should be regularly conducted, that with some regretI have come to the conclusion that I ought to set aside the orderof the learned Magistrate. I would, therefore, direct the learnedMagistrate to discharge the accused from the jproceedings, butbefore doing so to inform him that he is dischaiged simply becauseof defects in the proceedings, and to warm him that if he continuesto behave in a way calculated to cause annoyance and alarm to thepeople of the district, further proceedings will be instituted against
him. There is no doubt, as I say, that he is an insolent and insub-ordinate person, and that he is to a certain extent a nuisar'se in theneighbourhood. II, after the lapse of, say six months, furthercomplaints are made against him, then no doubt he may be dealtwith by proceedings more exactly and regularly framed.
I allow the present appeal.
KANAGASINGHAM v. TAMBYAM