031-NLR-NLR-V-67-A.-C.-PERERA-Appellant-and-THE-SUB-INSPECTOR-OF-POLCIE-KIRILLAPONA-Respondent.pdf
Present : Sansoni, C.J., H. N. G. Fernando, J.,
T. S. Fernando, J., L. B. de Silva, J., and Tambiah, J.
A. C. PERERA, Appellant and THE SUB-INSPECTOR OFPOLICE, KIRILLAPONA, Respondent
S. C. 1156—M. C. Colombo South, 50677jB
Criminal Procedure Code—Institution of proceedings under e. 148 (1) (b)—Accusedbrought before Court in custody without process—Evidence need not be recordedbefore charges are framed—Sections 126 (A), 131, 148 (1) (a) to (/), 151 (I) (2)(3), 151 (A), 187 (1).
Where proceedings in a Magistrate’s Court are instituted on a written reportmade under section 148 (1) (6) of the Criminal Procedure Code, and the accusedis at the same time brought before the Court in custody without process, it isnot necessary for the Magistrate to record any evidence before he chargee theaccused.
Mohideen v. Inspector of Police, Pettah (59 N. L. R. 217) overruled.
.A.PPEAL from a judgment of the Magistrate’s Court, Colombo South.
M. M. Kumaralculasingham, with W. G. Perera, for the Accused-Appellant.
D. St. G. Budd Jansze, Q.G., Attorney-General, with L. B. T.Premaratne, Senior Crown Counsel, V. S. A. PuUenayegum, CrownCounsel, and Wakeley Paul, Crown Counsel, for the Complainant-Respondent.
Gur. adv. vult.
April 29, 1965. Sansoni, C.J.—
The question of law which we have to decide may be formulated thus :—“ Where proceedings in a Magistrate’s Court are instituted on a writtenreport made under Section 148 (1) (b) of the Criminal Procedure Code,
2*—R 6846 (65/6)and the accused is at the same time brought before the Court in custodywithout process, is it necessary for the Magistrate to record any evidencebefore he charges the accused ? ”
Let me first consider the provisions of the Code itself, disregardingthe numerous judgments which may have a bearing on the question.
Under Section 148 (1), proceedings shall be instituted in one ofsix ways :—
(а)on a complaint made orally or in writing. If in writing, the com –
plaint must be drawn and countersigned by the pleaderand signed by the complainant; or
(б)on a written report by certain specified classes of public officers ; or
upon the knowledge or suspicion of a Magistrate ; or
on any person being brought before a Magistrate in custody without
process ; or
upon a warrant under the hand of the Attorney-General; or
(/) on a written complaint made by a Court under Section 147.
jjf Where the proceedings have been instituted under (a) or (6) or (c) or (e)or (/) mentioned above, Section 151 sub-sections (1) and (3) provide forthe issue of a summons or a warrant to procure the attendance of theaccused. Every summons or warrant must contain a statement of theparticulars of the offence charged (Section 151A). Where proceedingshave been instituted under (d) mentioned above, Section 151 (2) requiresthe Magistrate forthwith to examine on oath the person who has broughtthe accused before the Court and any other person who may be present inCourt able to speak to the facts of the case.
When the accused appears before the Court, the next step is for theMagistrate to charge him; and Section 187 provides how that is to be done.
Where the accused appears on summons or warrant a charge need not beframed, because the statement of the particulars of the offence containedin the summons or warrant shall be deemed to be the charge (Section187 (2) ).
Where the accused is brought before the Court otherwise than on asummons or warrant, the Magistrate must frame a charge against theaccused if he is of opinion that there is sufficient ground for proceedingagainst the accused (Section 187 (1)).
Where a prosecution commenced under Section 148 (1) (6) in respect ofan offence punishable with not more than 3 months’ imprisonment or afine of Rs. 50, the report serves as a charge (Section 187 (3)).
In each case the Magistrate must read the summons or warrant, or thecharge, or the report, as the case may be, to the accused and ask him if hehas any cause to show why he should not be convicted.
We now come to the question formulated at the beginning of this judg-ment. What is the position if proceedings were instituted on a writtenreport under Section 148 (1) (£>) against an accused who was brought before
the Court in custody without process ? It was argued for the accused -appellant that no charge should be framed in such a case until at least theevidence of the person who brought the accused before the Court has beenrecorded. It is sought to support this argument by Section 187 (1) whichreads :—
“ Where the accused is brought before the court otherwise than on asummons or warrant the Magistrate shall after the examination directedby section 151 (2), if he is of opinion that there is sufficient ground forproceeding against the accused, frame a charge against the accuseu. ”
The argument is that there must be an examination as directed by Section151 (2) in such a case because the accused was brought before the Courtwithout a summons or warrant.
But what does Section 151 (2) say ? It reads :—
” Where proceedings have been instituted under paragraph (d) ofsection 148 (1), the Magistrate shall forthwith examine on oath theperson who has brought the accused before the court and any otherperson who may be present in court able to speak to the factsof the case. ”
It will be seen that Section 151 (2) applies only to proceedings whichhave been instituted under Section 148 (1) (d) and to no other ; conse-quently there is nothing in Section 151 (2) to support the argument thatthere must be a preliminary examination in the case we are considering.
Some previous decisions appear to have been influenced by the failureto take into account the purpose of Section 187. That purpose is torequire a Magistrate, if he is of opinion that there is sufficient ground forproceeding against the accused, to read to the accused the charge againsthim. This the Magistrate must do, either from a charge framed by him orfrom a summons or warrant or report in which the charge was previouslyset out. No doubt Section 187 (1) contains the phrase “ after theexamination directed by Section 151 (2) ”, but Section 187 (1) does notfor this reason have, according to rules of grammar, the effect of requiringthe examination to be held. That requirement is already imposed bySection 151 (2), and need not have been and is not again imposed in thesubsequent provision. The phrase is only a reference to the examinationunder Section 151 (2), and since it is obvious that Section 151 (2) has notin terms any application in the case we are considering, the two Sectionsread together do not require such an examination in that case.
It has sometimes been argued that proceedings which have been insti-tuted under Section 148 (1) (b) on a written report become, in some way,proceedings instituted under Section 148 (1) (d) merely because theaccused was brought before the Magistrate without process. I think theonly possible answer is that they do not. Proceedings which have beeninstituted in one of the six ways do not change their character merelybecause there is present some additional circumstance which might alsobe present in the case of proceedings instituted in another way.
Where proceedings have been instituted under Section 148 (1) (b) theCode no where requires the examination of any person before a charge isframed, and it is open to a Magistrate to frame a charge in such a casewithout recording evidence. The particulars of the charge in such a casecould be taken from the report itself, though the Magistrate may recordevidence in order to obtain further particulars before framing the charge.
I do not think it is necessary to refer to the earlier decisions except thejudgments of three Judges in Mohideen v. Inspector of Police, Pettah 1which have taken the opposite view. It was held in that case that wherean accused is brought before the Court in custody without process, and areport under Section 148 (1) (6) is filed, the Magistrate must recordevidence on oath as required by Sections 151 (2) and 187 (1), beforehe frames a charge.
The main judgment in that case was delivered by K. D. de Silva, J.who held that Section 187 (1) required that in every ease where theaccused is present otherwise than on summons or warrant, the Magistratemust hold the examination contemplated by Section 151 (2). Withrespect, it seems to me that the learned Judge read into Section 151 (2)(which refers to proceedings instituted under paragraph (d) of Section148 (1) and no other) words which are not there ; he has read into thesub-section a reference to paragraph (6). But as I have pointed out earlier,the only examination contemplated by Section 187 (1) is the examinationdirected by Section 151 (2) and Section 151 (2) has no application whereproceedings are instituted under Section 148 (1) (6). Basnayake C.J.agreed with K. D. de Silva, J. in a separate judgment. I prefer the viewsexpressed in the dissenting judgment of Pulle, J. who said :—“ Section187 (1) speaks of an examination directed by Section 151 (2). The latterprovision is limited by its very terms to Section 148 (1) (d) and cannot beextended to cover an institution of proceedings under Section 148 (1) (£>). ”
For the reasons I have set out I would answer the question formulatedat the commencement of this judgment in the negative, and overrule thedecision in Mohideen v. Inspector of Police, Pettah.
The appeal may now be listed before a single Judge for furtherargument on the facts.
H. N. G. Fernando, J.—I agree.
T. S. Fernando, J.—I agree.
L. B. de Silva, J.—I agree.
Tambiah, J.—
I am in agreement with the view expressed by My Lord, the ChiefJustice. As this case is of some importance I wish to add a few comments.When this matter came up before me I requested My Lord, the ChiefJustice to refer this case to a Bench of five judges as I had doubts regardingthe view taken by the majority of the judges who heard the caseof Mohideen v. Inspector of Police, Pettah 1.
1 (1957) 59 N. L R. 27-
Section 148 (1) of the Criminal Procedure Code enacts that proceedingsin a Magistrate’s Court should be instituted in one of the following ways:
“ (a) on a complaint being made orally or in writing to a Magistrate ofsuch court that an offence has been committed which such courthas jurisdiction either to inquire into or try :
Provided that such a complaint if in writing shall be drawnand countersigned by a pleader and signed by the com-plainant; or
on a written report to the like effect being made to a Magistrate of
such court by an inquirer under Chapter XII or by a peace officeror a public servant or a Municipal servant or a servant ofan Urban Council or Town Council;
upon the knowledge or suspicion of a Magistrate or such court to
the like effect:
Provided that when proceedings are instituted under this para-graph the accused or when there are several personsaccused any one of them, shall be entitled to require thatthe case shall not be tried by the Magistrate upon whoseknowledge or suspicion the proceedings are instituted,but shall either be tried by another Magistrate orcommitted for trial; or
on any person being brought before a Magistrate of such court in
custody without process, accused having committed an offencewhich such court has jurisdiction either to inquire into ortry ; or
upon a warrant under the hand of the Attorney-General requiring
a Magistrate of such court to hold an inquiry in respect of anoffence which such court has jurisdiction to inquire into ; or(/) on a written complaint made by a court under section 147. ”
If it is imperative for the Magistrate to comply with section 152 (2) ofthe Criminal Procedure Code when proceedings are instituted under section148 (1) (6) and when an accused is brought before him without process,then it follows that proceedings could be instituted in a particular case inmore than one way under section 148 of the Criminal Procedure Codesince in such a case the proceedings would have been instituted undersection 148 (d) of the Criminal Procedure Code as well—a conclusionwhich is not warranted since proceedings can be instituted in only oneof the ways set out in section 148 of the Criminal Procedure Code.
Section 187 (1) of the Criminal Procedure Code, on which much reliancehad been placed by the majority of the judges who decided Mohideen'aCase, and the other paragraphs of section 187 deal with framing of charges.Section 187 (1) merely states that where an accused is brought otherwisethan on summons or warrant the Magistrate shall, after examinationdirected by section 151 (2), if he is of opinion that there is sufficient groundfor proceedings against the accused, frame charges against him. Underthis section the Magistrate is empowered to examine a witness who isbrought to court only in a case where proceedings have been institutedunder section 148 (d) of the Criminal Procedure Code. Therefore it
follows that section 187 (1) of the Criminal Procedure Code is onlyapplicable to a case instituted under section 148 (d) and not to a caseinstituted under section 148 (b) of the Criminal Procedure Code.
In a case instituted under section 148 (b) of the Criminal ProcedureCode, the officer concerned (usually a police officer), after inquiring intothe case, sends a report. He would act with a due sense of responsi-bility after proper investigation if he is satisfied that there is a prima faciecase. In most instances before filing his complaint under section 148 (1)(6), the officer would have furnished the Magistrate with a report ofthe investigation under section 126 (A) or section 131 of the CriminalProcedure Code. In proceedings instituted under section 148 (1) (a) theMagistrate either hears evidence or acts on a written complaint which iscountersigned by a pleader. In proceedings instituted under sections 148(1) (c) and 148 (1) (/) of the Criminal Procedure Code, the proceedingsare commenced at the instance of the Magistrate or a court.Proceedings could be instituted under section 148 (1) (e) upon theAttorney-General requiring a Magistrate of such court to hold an inquiryin respect of an offence which such court has jurisdiction to inquire into.In all the above cases the Magistrate has information before him that thereare reasonable grounds for initiating proceedings in his court.
When a person is brought before court otherwise than on summons orwarrant and before proceedings are instituted under section 148 (1) (d)of the Criminal Procedure Code, the Magistrate has no such informationabout it. It is provided by section 151 (2) of the Criminal Procedure Codethat the Magistrate should examine the person who has brought upaccused before the court and any other person to speak to the facts ofthe case. The intention of the Legislature in enacting section 151 (2)of the Criminal Procedure Code is to enable a Magistrate to ascertainwhether there are grounds for proceeding against a person brought upbefore him. It is not meant to furnish information to the accused,for, in whatever manner proceedings are instituted under section 148of the Criminal Procedure code, the nature and particulars of acharge must always be explained to an accused person before he can becalled upon to plead. If it is realised that section 148 (1) of theCriminal Procedure Code only deals with the different ways in whichproceedings could be instituted in the Magistrate’s Court, the solution tothis problem becomes simple.
For these reasons, I agree with the dissenting view expressed by Pulle J.in Mohideen's Case and the views taken in Coder v. Karunaratne 1, Ebert v.Perera 2 and in Lamantissa de Silva v. S. I. Police, Matara 3. I am ofopinion that only in a case where proceedings are instituted under section148 (1) {d) of the Criminal Procedure Code a duty is cast on the Magistrateto examine a person who brought the accused or any other person beforethe action is proceeded with but where proceedings are instituted undersection 148 (1) (b) the procedure envisaged in section 151 (2) does not
apply.
1 (1943) 45 N.L.R. 23.
* (1960) 62 N.L.R, 92.
Ruling given on a question of law.* (1922) 23 N.L.R. 362