084-NLR-NLR-V-44-A.-J.-M.-DE-SILVA-v.-MAGISTRATE-GAMPOLA-AND-POLICE-INSPECTOR-HERAT.pdf
320 DE KRETSER J.—de Silva v. Magistrate & Police Inspr. Herat.
1943Present: de Kretser J.
A. J. M. DE SILVA v. MAGISTRATE, GAMPOLA, ANDPOLICE INSPECTOR HERAT.
J
In the, Matter of an Application for a Writ of Mandamusin M. C. Gampola, 4,421
Writ of mandamus—Cas pending before Magistrate—Case instituted fayPolice—Right of complainant’s proctor to- appear—Criminal ProcedureCode, s. 148 (I) (b).
Where proceedings are instituted in a Magistrate’s Court on a Teportby a police officer under section 148 (1) (fa), a police officer is not entitledto conduct the prosecution.
A proctor retained by the complainant has the right to appear for himand conduct the prosecution.
T
HIS was an application for a writ of mandamus on the Magistrateof Gampola.
H. V. Perera, K.C. (with him S. P. Wijeyewickreme) in support.
f,G. E. Chitty, C.C., as amicus curiae.
Cur. adv. wilt.
July 7, 1943. de Kretser J.—
i*
The point-raised in this application is said to arise rather frequently. in recent times, and both the Attorney-General’s Department andmembers of the legal profession are anxious that it should be authorita-tively decided. I was inclined, therefore, to have the^ case sent up before-
321
DE KRETSER 3.—de Siloa v. Magistrate & Police Inspr. Herat.
a Divisional Bench, but when I saw that the trial of this summary offencehad started so far back as May 25, 1942, and had been held up from Julyof that year by reason of this application, I decided that further delaywas undesirable.
The question has been touched upon by Keuneman J. in the case ofGrenier v. Edwin Perera1 but his remarks were made obiter and the mattertherefore has to be considered afresh.
In that case a police constable had been charged with causing grievoushurt with a club. Proceedings started with a written report undersection 148 (1) (b) of the Criminal Procedure Code by Sub-InspectorGrenier. After a preliminary discussion the magistrate had allowed theAssistant Superintendent of Police to conduct the prosecution. Theaccused was acquitted and the injured party moved this Court in revision.Objection was taken that he had no status, and eventually the caseseems to have been considered on its merits, but it is not clear whetherthis was done- because he had a status. It was when considering thequestion of status that Keuneman J. considered the terms of section 199of the Code. He seemed to think that the injured person may be regardedas a complainant, that Sub-Inspector Grenier also may be regarded as acomplainant, and that the Assistant Superintendent of Police came withinthe words “ any officer of any government department ” in that section,and that it was a matter for the magistrate to decide, in his discretion,as to who should conduct the prosecution. In other words, he seemedto think that more than one person might claim the right under thatsection and the magistrate would then decide between the conflictingclaimants. He did not indicate on what lines the magistrate shouldexercise his discretion. To my mind it seems unlikely that the Codewould have left the matter in such a doubtful position, and that in mostcases—if not in all cases^-the decision of the magistrate would bearbitrary. •
Section 2 of the Code defines the word “ complaint ”, and the naturalinference would be that the person making a complaint is the complainant.But I think it is necessary to distinguished between a person making acomplaint and a. person instituting proceedings under section 148 of theCode. If one analyses the definition of “complaint” it gives the wordits ordinary meaning but restricts it to offences and to complaints madeto a magistrate. It is not concerned with the method employed inbringing a complaint before a magistrate. A magistrate, in the Code,represents the first judicial officer who deals With an offence. He is notconcerned with grievances which are not offences, and, however mucha person may have a grievance or complaint to private parties, proceedingsin a Court will not start except in one of the ways indicated in section 148,and not unless a grievance relates to an offence.
It is useful to examine the sections of the Code in which the words“ complaint ” or “ complainant ” occur and to understand the schemeof the Code.' j
Section 22 requires that every peace officer should forthwith communicateto the nearest magistrate or inquirer, or to his own immediate superior,any information he may obtain respecting the commission of any offence.
1 42 N. L. R. 377.
322 DE KRETSER J.—de Silva v. Magistrate & Police Inspr. Herat.
“ Peace officer ” is defined as including police officers and headmenappointed by a. Government Agent in writing to perform police duties.JEvery police officer therefore is bound to report any offence in terms ofsection 22.
Section 33 requires a peace officer making an arrest without a warrantto send the person arrested before a magistrate. Section 38 casts theduty on officers in charge of police stations to report the cases of allpersons arrested without warrant. Section 70 authorises a magistrateto act upon information.
Section 81 and the following sections deal with security for keepingthe peace and security for good behaviour, and in sections 81, 82, and 83the magistrate acts on information. In section 84 provision is made forhis acting on the report of a peace officer. Section 105 also provides fora magistrate acting upon a report or other information. In none of thesesections has the word “ complaint ” been used, and if any. allegationmade in writing constituted a complaint it seems to me that the Codeneed not have used the word information.
Under section 121 information of a cognizable offence is given to anofficer in charge of a police station or to an inquirer, and the duty is caston those two persons to forward a report to the magistrate forthwithand also to make an immediate investigation. Section 127 says that ifupon investigation there are grounds for believing that the informationis well founded, the officer in charge of the police station “ shall forwardthe accused under custody ", or take bail when that is permitted. Notethat he forwards the accused but is not required to make a complaint.What follows on his so forwarding t|ie accused is laid down in section151 (2). Section 127 goes on to say that “ in such case the officer orinquirer shall, require the complainant, if any, and the witnesses to executea bond to appear before the magistrate’s court”. Of course there maybe no complainant, where the police officer is acting on information.But the important thing is that the existence of a complainant in theperson of the injured man is recognized, and the person reporting isregarded as somebody different. A complainant is regarded as beingdifferent from, the witnesses.
The sections hitherto examined suggest that the magistrate is mainlyresponsible for the supervision of crime in his division, and that it is theduty of all inquirers and peace officers to keep him informed of all offencescommitted of likely to be committed in his division. Section 22, unlikesection 121, relates to any offence and not merely to a cognizable offence.An “ offence ” is defined in section 2 as meaning “ any. act or omissionmade punishable by any law for the time being in force in this Island.
We then pass on to section 147 (2) and (3) which speak of the “ com-plaint ” by a Court. Chapter XV. takes us a step further and indicateshow proceedings commence in a Magistrate’s Court. The very firstmethod contemplated is that of a complaint made by the party affectedby an offence; that is to say, he is the obvious person to complain.Reports by the police or by inquirers are confined to cognizable offences(wide section 121) : section 148 (1) (a) is not so restricted. It providesthat the complaint, if in writing, shall be drawn by a pleader and signedby the complainant. The-last case mentioned (/) is that of . a written
DE KRETSER J.—de Silva v. Magistrate & Police Inspr. Herat. 323
complaint by a Court. Having already defined the Word “ complaint ”. and Having used the word in this very section, what is called for in thecase of an inquirer or peace officer or public servant or servant of a localbody is a written report. Where the offence alleged is an indictable one(section 150) the magistrate is authorised to examine the complainant orintormant, and the two sub-sections particularly referred to are 148 (1) (a)where the word “ complaint ” is used and 148 (1) (b) where the word“report” is used. A clear distinction seems to be drawn between thetwo cases ; in the former one it is the complainant who is examined, inthe latter the informant. A peace officer therefore seems to be aninformant, not a complainant.
It is useful to examine here the terms of sectiop 388 which deals withone of the powers of the Attorney-General. The magistrate may beordered to discharge the accused from the matter of the complaint(presumably under section 148 (1) (a) and (j), information (section 148
(b) or charge 148 (1) (d).
Having indicated in what cases the magistrate would issue summonsor warrant, the Code proceeds to deal in Chapter XVI. with inquiriesinto indictable offences when the stage has been reached of the accusedbeing before the Court. No provision is made in this chapter for anyperson appearing and conducting the inquiry. The general tenor ofthe chapter is to place on the magistrate the duty of conducting the inquiryand, as we know, when a magistrate proceeds to the scene of a murderhe invariably calls upon those present who know anything about thematter to come forward and give evidence. Section 392 is clear andstates that “ No person other than the Attorney-General, the Solicitor-General, Crown Counsel, or a pleader generally or specially authorisedby the Attorney-General shall conduct the prosecution in any case intowhich the magistrate of a Magistrate’s Court may be inquiring ”. “ Inthe absence of the Attorney-General, the Solicitor-General, CrownCounsel, and a pleader generally or specially authorised by the Attorney-General the magistrate shall conduct the prosecution, but nothing inthis section shall preclude the magistrate from availing himself, if heconsiders it so desirable, of the assistance of any pleader or public officerin the conduct of any inquiry ”,
Chapter XVIII. deals with trials of summary cases. The Code seemsto contemplate four possible situations :
where the trial proceeds ;
where the complainant is absent;
where the complainant desires to withdraw the charge ; and .
where some other situation may arise.
Where then the trial proceeds, section 189 (3) uses the word “ complainant ”and says that he or his pleader shall be entitled to open his case. It saysnothing about officers of government departments or local bodies. Per-haps the main purpose of the section is to outline the general procedure andnot to indicate who should conduct the prosecution. It is useful, however,as indicating the view that the person affected would be the properperson to conduct the case.
324"DE KRETSEK J.—de Silva v, Magistrate &■ Police Inspr. Herat.
Section 194 deals only with complaints under section 148 (1) (a) ; reportsby police officers are therefore excluded. The section says that if thecomplainant does not appear the magistrate may acquit the accused.The complainant is permitted to have the case reopened on groundsentirely personal to him, such as sickness or accident. There can be noambiguity about the meaning of the term complainant in this section.Presumably the presence of his pleader and of all his witnesses will notsave the situation. Section 195 provides for a complainant withdrawinga case, lit seems to me that here too “ complainant must refer to theprivate individual affected by the offence.
The question naturally arises why a public servant should not bepermitted to withdraw a case, and why he should not be penalised forhis absence. The only reason I can think of is that public servants areresponsible officers of the Crown who are not expected to launch prose-cutions lightly, and that prosecutions launched by-them affect the publicand not merely private individuals and should not therefore be put on thesame footing. In most cases the public servant would have the assistanceof the Attorney-General’s Department and the Attorney-General’s powersare wide enough.
Section 196 seems to deal with the position of public servants. Itexcludes sub-heads (a), (c) and (d) of section 148 (1). Provision hasalready been made for cases falling under section 148 (1) (a). In casesfalling under sub-heads (c) and (d) the magistrate has the control of thecase from its very incention and is the person responsible for havinginstituted proceedings. In the remaining three cases the magistrateis empowered to stop proceedings at any stage but only with the previoussanction of the Attorney-General. This would cover cases of non-prosecution, cases where the prosecuting officer desires to withdrawthe prosecution, and cases which the magistrate thinks should be stoppedfor some other reason. It seems to me that the sanction of the Attorney-General is renuired because those cases affect public departments andlocal bodies. What would happen should the Attorney-General, on beingasked for sanction; refuse to grant his sanction ? The magistrate mightbe faced with an imvasse. Accordingly provision is made for intervention •by the Attorney-General. The opportunity is seized to state bv whomprosecutions in summary cases should be conducted. Normally theywould be conducted bv the complainant or by a representative of the- department or local bodv affected by the Offence. It seems fairly clearthat the word “ interested ” in section 199 does not refer to the kind ofinterest which the public mav have in a case but is equivalent to sayingthat a person or a department is affected by the case.
Having stated auite emphatically the right of the Attorney-Generalto conduc+ the prosecution in any case, the section goes on to state thatin the absence of such aDnearance the complainant or any officer of thedepartment or local body concerned may appear to prosecute. It is overthis provision that the present dispute arises.
I do not think anything turns on the fact that in the first part of thesection the words used are “ shall be entitled to appear ” and later “mayappear to prosecute ”. The two expressions mean the same thing.Perhaps the Attorney-General’s right is the more emphatically stated.
DE KRETSER J.—de Silva v. Magistrate & Police Inspr. Herat. 325
The word “ complainant ” has up to this stage bofhe only one meaning,and I do not think any different meaning is to be attributed to it here.If the person making a report under section 148 (1) (b) is also includedin the term, then the magistrate might be called upon to choose betweentwo rival complainants. The difficulty is avoided if we distinguishthe person forwarding the report by calling him “ informant ”, as section150 does. In prosecutions by government departments or local bodiesno private individual is so closely affected by the offence as to be termedthe complainant; it is the department or body which is affected. Itseems to me that it is only in the case of the police that it has beenclaimed that a police officer is interested in every offence, even thoughhe may not be affected by the offence. The Attorney-General’s Depart-ment, the Solicitor-General’s Department, the Legal Secretary’s Depart-ment and others would be equally so interested.
Under the Code the police are entrusted with the same duties asinquirers and police headmen. An inquirer or a police headman is not agovernment department in himself nor is he an officer of any governmentdepartment, as far as I am aware, and yet they also forward reportsunder section 148 (1) (b).. Did the Legislature contemplate that theywere qualified to conduct prosecutions and even better qualified than theperson affected or his lawyer ? That seems hardly likely. Is it morelikely that the Legislature intended at this stage to distinguish betweenthem and police officers and considered that the latter would be coveredby the expression “ officer of a government department ” ? The questionis not “ who has instituted proceedings ”, for both the private individualand the police may do so. It appears to me that section 199 has referenceback to section 148 (1). The complainant comes first and then thepersons mentioned in sub-head (b) are provided for—except inquirers andpolice headmen. The question is whether the police also were notexcluded, and whether the police constitute a government department.
Chapter XLII. of the Legislative Enactments establishes the ExciseDepartment and refers to it as such. But when we turn to the policethey are never referred to as a department but as a force : vide also theCeylon Naval Volunteer Force, the Ceylon Defence Force. In the Code .a police officer is defined as being “ a member of an established policeforce”. What is more, the Police Ordinance contemplates a general'police force and police in rural districts. It provides for the establish-ment by proclamation of >a police force in a town. Is then each suchpolice force a separate department ? We know that there exists withinthe force a Criminal Investigation Department, and there may be otherdepartments also in it.
The Ordinance establishing the police having referred to it as a forceand the Criminal Procedure Code also referring to it as a force, it does notseem to me correct to interpret “ government department ” as referringto the police. It may be that the police are called a department forcertain purposes but one never thinks of the Police Department being onparade or of the Police Department being called out for any otherpurpose. There is a further difficulty: if within the police force itselfthere are departments, a contest may arise between an officer of such a
326 DE KKETSER, J,-—de Silvd v. Magistrate & Police Ittspr. Herat.
department and an officer of the force considered as a larger depart-ment—if a purely theoretical situation be visualised.
If the police base their claim on the ground of their interest in bringingoffenders to justice, then they might intervene In any case brought byany other department, such as the Customs or the Excise. It is impossibleto believe that the Legislature contemplated any such situations. TheCode very carefully assigns to the police the part of informants, of personsassisting a Court, and nowhere else does it recognise them as entitled toconduct prosecutions. Section 148 (1)(b) distinguishes them from
“ public servants ” and terms them “ peace officers ”.
The remarks of My Lord the Chief Justice in Kulatunga v. Mudalihamy 1may appropriately be considered here. In that particular case thesergeant who conducted the prosecution was a material witness, andwhilethe remarks of His Lordship apply no doubt to that particularsituation they have also a wider application, namely, that it is a badpractice to allow a policeman to act as an advocate before any tribunal.The duties of the police are set out in section 57 of the Police Ordinance(Chapter XLIII.) and one Of them is to detect and bring offenders tojustice. It is hardly desirable 'that a force entrusted with detectivework and likely in the course of such work (subconsciously perhaps) todevelop the instincts of the sleuth-hound should do more ihan bringoffenders to justice, in the person of the magistrate. The case of Webb v.Catchlove cited by the Chief Justice was decided in 1887, as also thecase of Duncan v. Toms. The framers of the Code might well have hadin minri these judgments to support their own experience.
It has to be borne in mind that the Evidence Ordinance indicates thebelief that the police should not be trusted in the matter of confessions.The policy -of the law in Ceylon is not in their favour. The Information.Book is always available to guide a Court. Lawyers are officers of Courtand are expected to perform their duties honestly and honourably.There is one advantage in police officers not conducting cases. Theyusually have their notes of investigations already made, often not quiteaccurately or intelligently, and are apt to lead a witness along the lines oftheir notes! A comparison of these notes during a trial with themagistrate’s record often betrays a very close correspondence betweenthem.
, To sum up: In my opinion the person sending a written report toCourt is not a complainant but an informant. The departments referredto are departments which arev closely affected by the offence alleged,whose representatives are termed “public servants” in section 148 (1)
. The police are not given the position of being other than informantsand assistants to a magistrate.
In my opinion, therefore, the police inspector in the present case wasnot justified in opposing the appearance of the proctor for the complainant.He will- no doubt assist the Court in such a way as is open to him. There• used to be the closest co-operation between the police and complainants’lawyers and the police always welcomed legal assistance. The apparentrivalry is most deplorable.
'Rule made absolute.
i 42 A’. X. R. S3.