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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.THE KING v. THEMANIS PERERA.
D. C. (Criminal), Colombo, 2,121.
Indictment for making contradictory statements—Summary trial—Indict-ment not properly signed—Criminal Procedure Code, s. 439—Ordinance No. 21 of 1906.
An indictment under section 439 of the Criminal Procedure Code,where such indictment is presented in the District Court, must besigned by the Secretary of such Court. Where the Chief Clerkof the Court of Requests signed the indictment,—
Held, that the indictment was bad.
PPEAL by the accused from a conviction by M. S. Pinto, Esq.,Additional District Judge, under section 439 of the Criminal
Procedure Code, as amended by Ordinance No. 2 of 1906. Thefacts sufficiently appear in the judgment.
H. Jayewardene (with him F. A. Tisseveresinghe), for the accused,appellant.
W. de Saram, C.C., for the Crown.
Cur. adv. vuU.
January 14, 1909. Hutchinson C.J.—
There are three grounds of appeal urged by the appellant’scounsel. The first is that the indictment was not signed by theSecretary. The accused was arraigned under section 439 of theCriminal Procedure Code, which requires that at a trial in a District-Court under that section the indictment shall be prepared andsigned by the Secretary of the Court. This indictment is signedby Edgar A. Brohier, Chief Clerk. Mr. Brohier gave evidence atthe trial and said: “ I am the Chief Clerk of the Court of Requests,I do the work of the Secretary of the Additional District Court.”The objection that the indictment was not signed by the Secretaryis taken in the petition of appeal, but was not mentioned in theDistrict Court. If it had been taken there, the Judge might havegiven some explanation, and I deferred giving judgment in orderthat I might make inquiry of him ; but I find he is absent on leave.I have inquired from Grenier J., who has had long experience asDistrict Judge, and he says that in his experience the indictmentin these cases in the District Court or the Additional DistrictCourt is always signed by the Secretary of the District Court. Inmy opinion this is essential; and the omission or-irregularity inthe indictment such as is referred to in section 625, because untilthe document is so signed it is not an indictment.' I accordinglyset the conviction aside.
THE KING v. THEMANIS PERERA