( 371 )
Present: Drieberg J.
MEXON v. FERNANDO.379—P. C. Chilaw, 21,587.
Charge—Proceedings initiated on written report—Summons issued—Charge read from summons—Irregularity—CriminalProcedure
Code, s. 42$.
The proceedings against an accused person commenced with awritten report under 148 (1) (6) of the Criminal Procedure Code, andthe Police Magistrate issued summons in which the charges werestated as they appeared in the report.
When the accused appeared on summons, the Magistrate ex-plained the charge to him from the report, instead of from thesummons.—
Held that the irregularity did not vitiate the conviction.
PPEAL from a conviction by the Police Magistrate of Chilaw.
Gtoos Da Brera, for accused, appellant.
September 16, 1927. Drieberg J.—
(After dealing with the facts.)
I see no reason to disagree with the conclusions which thelearned Police Magistrate has come to on the facts of the case.
Mr. Croos Da Brera however contends that the conviction isirregular as the Police Magistrate when the accused-appellantappeared did not adopt the correct procedure required by section 187of the Criminal Procedure Code.
( 372 )
The proceedings commenced with a written report under section148 (1) (b) by an Excise Inspector complaining of the commission bythe appellant of offences under sections 16, 17, and 48 of the ExciseOrdinance, No. 8 of 1912; these offences are punishable with morethan three months* imprisonment or a fine of Rs. 50; the offenceswere properly formulated and contained all the particulars requiredof a charge by the Code. The Police Magistrate ordered summons,and in it the charges were stated precisely as they appeared in thereport.
The accused-appellant appeared after service of summons. Therecord of the proceedings relevant to this point is as follows:
“ Charge is explained from the plaint. The accused pleads notguilty a date was fixed for trial.
The accused having appeared on summons the Magistrate shouldhave read to the accused the statement of the particulars of theoffences contained in the summons; what he did was to read to himthe same statement of it from the report.
Mr. da Brera contends that this is not a strict compliance with theprocedure required, that the appellant having appeared on summonsthe charge should have been read from the summons and not fromthe report, especially as the offences were not within the proviso tosection 187 (3).
Now, the Police Magistrate did read and explain to the accusedthe statement of the offences as contained in the summons, thoughhe read it not from the summons but from the report, where itappeared in the same words. This is a substantial compliancewith the provisions of section 187, and the course adopted was notattended with the least possibility of prejudice to the accused;what he heard from the Police Magistrate was exactly what appearedin the summons he had received and no doubt read and came toCourt to answer.
It remains to be considered whether the conviction is bad orwhether this slight irregularity is one within the provision ofsection 425 of the Criminal Procedure Code. In my opinion it doesnot vitiate the conviction; the same view was taken by WoodRenton C.J. in the case of Boulton v. Sanmugam, 1 and I do notthink that this view is in conflict with the principle underlyingthe decision of the Full Court in Ebert v. Perera.2
I therefore dismiss the appeal.
* (1922) 23 N. L. R. 362.
1 (1915) 3 Bed. Notes of Cases 46.
MENON v. FERNANDO