A. KANAGARAJAH, Appellant, and THE QUEEN, Respondent

096-NLR-NLR-V-74-A.-KANAGARAJAH-Appellant-and-THE-QUEEN-Respondent.pdf


878
Kanagarojah v. The Queen
Present: Samerawickrame, J., and YVijayatilake, J.
A. KANAGARAJAH, Appellant, and THE QUEEN, RespondentS. C. 55/70—D. C. (Criminal) Trincomalee, 413/934
Poll Office Ordinance (Cap. 190), as amended by Act No. 24 of 1957—Sections 76 O(/) and S2 (2)—Prosecution for offence of possessing without lavjul excusemail bags bearing the official inscription—Absence of Postmaster-General'scomplaint—Incurable defect—Criminal Procedure Code,ss. 12, 147,425—CourtsOrdinance, ss. 04, 71.
Section 82 (2) of the Post Offico Ordinance, as amendod by Act No. 24 of1957, roads:—
“ No court shall toko ecgnizonco of an offonco punishable under any of thoprovisiens of sections . . . 70A, 7GD, 7GC … of this Ordinance, unlessupon complaint made by order of, or under authority from, tho l’ostmnstcr-Conoral."
Held, that a conviction on indictment in a District Court of an offencepunishable under section 7G C (1) of tho Post Office Ordinance, of possessingwithout lawful excuse five omply mail bags beating tho official inscription, wasinvalid in tho absonco cf a complaint mndo by order of or undor authority fromtho rostmastor-Genoral. In such o case tho absonco of tho required complaintwas a defect which could not bo cured by tho application of tho provisions ofsection 425 of tho Criminal Procedure Code either to tho proceedings intho Magistrate's Court or to the proceedings in tho District Court.
r/pPEAX> from a judgment of the District Court, Trincomalee.
Nimal Senanayake, with {Miss) S. M. Senaralne and M. Mousoof Dten,for the accuscd-appcilant.
' Tyrone Fernando, Crown Counsel, for the Attorney-General.
Cur. adv. vult-
SAMERAWICKRAME, J.—ICanagarajah v. The Queen
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March 29, 1971. Sameratokrajie, J.—•
In tills case, acts which constitute the simple offence of theft of propertyworth a few rupees have been made the basis for a conviction of anindictable offence punishable with imprisonment or with line or bothunder the Post Office Ordinance (Cap. 190} because the property stolenconsisted of five empty mail bags bearing the words “ Post OfficeCe 3-Ion
The appellant was tried and convicted on indictment in the DistrictCourt of Trincomalce of an offence punishable under Section 7GC (1)of the Post Office Ordinance, of possessing without lawful excuse, fiveempty mail bags bearing the official inscription. Learned counsel forthe appellant submitted that it had not been proved that the mail bagsbore the official inscription within the meaning of the Ordinance. Healso submitted that all proceedings had and the ccnvi jtion of the appellantwere bad by reason of the fact that there was no complaint made byorder of, or under authority from, tire Postmaster-General, as requiredby s. S2 (2) of the Post Office Ordinance. It was conceded by learnedCrown counsel that neither at the enquiry by the learned magistratenor in the trial proceedings in the District Court was there any prooftendered that the complaint was made by order of, or under authorityfrom, the Postmaster-General.
Section S2 (2) of the Post Office Ordinance (Cap. 190) as amended byAct No. 24 of 1957, reads—
“ No uourt shall take cognizance of an offence punishable underany of the provisions of sections …. 76A, 70B, 76G and …. of thisOrdinance, unlesa upon complaint made by order of, or under authorityfrom, the Postmaster-General. ”
In terms of this section, a complaint made by order of, or under authorityfrom, the Postmaster-General is necessary for the cogciv…nco of anyof the offences mentioned. The effect of the words “no court shalltake cognizance of an offence …. except upon a complaint ….” is toprovide that a complaint by order of, or under authority, from, thePostmaster-General, is a condition precedent to the assumption ofjurisdiction to take proceedings in respect of any of the offences sot out.This would appear to bo tiic ordinary result of the words used and thereis nothing in tho context that suggests or requires that such an effectshould not ensuo. Without such a complaint therefore, a Court is notcompetent to havo proceedings, and if it did, its proceedings, unless thedefect can bo cured by s. 425 of tho Criminal Proceduro Codo, would boinvalid.
Tho express provision in s. 425 (b) prevents a judgment being setaside on account of the want of any sanction required by s. 147 of theCriminal Proceduro Code. The want of sanction required by s. 147 istherefore no more than an irregularity which is curable. The effectof tho absence of sanction or authority required by other provisions of
3SOSAMERAWICKRAME, J.—Kanagarajah v. The Queen
the Code or other laws lias to be considered. In Breretonv. JRalranhamy,*Moseley,held that the failure to obtain the sanction of the
Attorney-General as required by Ordinance No. 11 of 1933 was notcurable under s. 425 of the Criminal Procedure Code and rendered theproceedings a nullity. Ho said “ The section of the Criminal ProcedureCode however bj' virtue of which it is now sought to cure the omissionto obtain the sanction necessary to institute proceedings for an offenceagainst Ordinance No. 11 of 1933 is section 425 which provides that nojudgment of a Court of competent jurisdiction shall be reversed onappeal on account, infer alia, of want of any sanction required by section147, unless such want has occasioned a failure of justice. I am satisfiedthat no failure of justice has been occasioned in this ease by tho omissionto obtain the proper sanction but the case is not one of those embracedby section 147. No other provision of law has been brought to mynotice under which this particular omission might be cured. It seemsto mo that in the absence of the required sanction tho trial is a nullity.”In 31. G. Perera v. Inspector of Labour, Matugamawhere there wasnothing to show that the sanction which was in general terms referred totho particular charges made in the report, Wijeyewardene C.J. said,“ The defect I have referred to cannot bo cured by the application of thoprovisions of section 425 (b), as that section refers to a sanction requiredby section 147 of the Code. Nor do I think it possible to have recourseto section 36 of tho Courts Ordinance. To do so would be to extend theoperation of section 425(6) of the Criminal Procedure Code, when thelegislature itself had restricted its scope by reference to sanctions undersection 147 of tho Code (vide Bertram C.J.’s observations in Cornells Uamxjv. Thoronis et al.—(1924) 2 Times of Cc3'lon Law Reports 192.”
In a long line of cases3, in India it has been held that the absence of acomplaint or sanction as required by provisions like s. S2 (2) is a defectwhich vitiates the proceedings and is not an irregularit}' curable unders. 537 of the Indian Criminal Procedure Code which was almost identicalwith s. 425 of our Code. This view is supported by decisions of thePrivy Council and of the Supreme Court of India.
In Gokulchand Divarkadas v. The King 4, Sir John Beaumont,delivering the judgment of the Privy Council said, " It was not disputedthat if the sanction was invalid the trial Court is not a court of competentjurisdiction …. For tho reasons above explained the sanction given wasnot such a sanction as was required by el. 23 of Cotton Cloth and Yarn(Control) Order 1943 and was, therefore, not a valid sanction. A defectin the jurisdiction of tho Court can never bo cured under s. 537.”
In Willie {William) Slamey v. Slate of 3Iadhya Pradesh5, Aiyar J.,considering irregularities which may be cured under s. 537 said, * Ofcourse, lack of competency of jurisdiction, absenco of a complaint by 1
1 (1910) 42 iV. L. R. 149.• (1919) 50 N. L. R. 421 at 423.
A. I. R. (1934) All. S63 Full Bench, A. I. R. (1925) Oudh 15S, 31 Cr. L. J. 1092.
A. I. R- 1927 R’agpul 202. A. I. R. 1939 F. C■ 43, A. I. R. 195 i S. C. 037.
A. /. R- (194S) P.C. 82 at 85.• A. 1. R. (1956) S.O. 116 at 135..
SAAfERA WICTvRAME, J.—Kanagarajnh v. The Queen
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the proper person or authority specified, want of sanction prescribed as acondition precedent for a prosecution, in short, defects which strike attho very root of jurisdiction stand on a separate footing, and theproceedings taken in disregard or disobedience would be illegal.”
Ramaswami, J., in tho case of In re Subramaniam1, said, " Tho‘want’ of a complaint as required by law will affect tho ‘competency’of a magistrate to deal with a case and is not a curable error. Tho
want’ of a sanction required under ajy- provision of law will similarlyaffect the corupetencj- of the Court and is not curable under this Section.But quite different would be irregularities in sanctions granted and insuch cases irregularities in sanctions will bo curable to the extentpermissible under s. 537 Cr. P. C.
Thus a sharp distinction is drawn between initiation of proceedingswithout sanction as required by the sections and irregularities in sanctionsgranted, tho former being a defect which viliales the proceedings ab inilioand not an irregularity curable under s. 537 Cr. P. C. and the latter sharingthat of other irregularities of a like nature being curable to the extentlaid down in s. 537 Cr. P. C. To sum up, want of sanction cannot becured but irregularities in sanctions can bo cured.”
Tho statements in some of tho cases appear to bo wide. It isabundantly clear however that where, upon proper construction, thoeffect of a provision is that a complaint by order of, or under authorityfrom, a person or sanction is a condition precedent to the assumption ofjurisdiction, then the ■want of such complaint or sanction is a defect whichis not curable. In this case there was tho want of a complaint as requiredb3's. S2 (2)'of the Post Office Ordinance, and I am of tho view that thoabsence of such complaint is a defect not curable under s. 425 of thoCriminal Procedure Code.
Learned Crown Counsel submitted that tho presentation of thoindictment to tho District Court cured any defect and he sought supportfor his submission from decisions2, which held that where there was acommitment regular on its face and an indictment was oresented by thoAttorney-General, it was tho duty of the District Court to proceed to trythe case.
In King v. IJarip Boosa3, Wendt-, J.,' stated, ‘‘A District'Court,'before which an accused person is brought for trial upon a Avarrant ofcommitment regular on its face, and to Avhieh an indictment is presentedby tho Attorney-General, is not competent to inquire Avhetlier theproceedings which cuhninated in the committal were regularly institutedor regularly conducted. It is its duty to try tho accused.” In King v.Dayaraine*, tho District Judge to whom an indictment setting out acharge of grievous hurt Avas presented had held that the medical oidcncoled at tho non-summary inquiry did not disclose an offence under s. 317but only tho offence of simple hurt. Ho had gone on to find that tho1 A. I. J?. (1957) Madras 442 at 446.
1 S. C.R. 198, 1 Browne 400, 5 N. L. R. 236, 10 N. L. R. 199, 11 N. L. R 355,
4e N. L.R. 513.*11 N. L. R. 355 at 356'
* 46 N. L: R. 513.
3S2SAAHERAWfCKRAME, J.—Kanagarajah v. The Queen
committal was a nullity and had thereforo discharged tho accused. Inappeal it wa3 held that tho District Judge had no power to inquiro intotho question a3 to whether tho proceedings in the Magistrate's Courtwere irregular. It was his duty to try tho case. Kounoman, J., in thocourse of Id's judgment'said that no question of jurisdiction arose. Hoalso stated, “ It is possiblo that relief may be obtained in the caso of aserious irregularity on application to the Supremo Court, but in myopinion the District Judgo had no authority to inquiro into such amatter.”
In Queen, v. Kolendavaill, where too it was held that the DistrictJudge had no power to inquire into the validity of the commitment,Burnside, C.J., said that the remedy for an irregular commitment wouldbe by application to this Court.
It. appears to me that the true position is not that an indictment curesnn irregularity but that the District Court has no jurisdiction to inquireinto the regularity of the proceedings in the non-summary inquiry beforethe magistrate for the purpose of considering the validity of thecommitment.
Section 12 of the Criminal Procedure Code states—
“ No District Court shall take cognizance of any offence unless theaccused has been committed for trial by a Magistrate’s Court dulyempowered in that behalf …. ”
In the absence of a complaint required by law, the Magistrate’s Courtwas not competent to have proceedings in this case. It could nottherefore, in my view, be considered to have been duly empowered tocommit the accused for trial for the offence punishable under s. 76C (I) inthis case. It is true that the District Court had no power of review assuch to inquire into the regularity of the initiation of the proceedings intho Magistrate’s Court or the regularity of the proceedings themselves.Nor had it power to quash the committal. It had the duty however ofconforming to Section 12 of the Criminal Procedure Code and for thepurpose of performing that duty it could go into the question whetherthe Magistrate’s Court was duly empowered to commit the accused fortrial for the offence punishable under s. 7CC (1) in this case. As I havoindicated above the Magistrate’s Court was not duly empowered to do so.The District Court therefore in terms of s. 12 was prohibited from havingproceedings in respect of this offence.
I am moreover of the view that the prohibition in s.S2 (2) applied notonly to the Magistrate’s Court but also to the District Court. For thereasons I have set out in considering the position of the Magistrate’sCourt, the District Court too was not competent to have proceedings inrespect of this offence.
Learned Crown Counsel submitted that it was section 64 of the CourtsOrdinance that conferred jurisdiction on the District Court and thatthat Court had jurisdiction in respect of the offence. This contentionis no doubt correct. But the exercise of jurisdiction and the having
» l S. C.n. lot.Richard v. Anularcalhie
3S3
of proceedings by the District Court in disregard of statutory' prohibitionsagainst taking cognizance of this ofTcnce had the effect that suchproceedings were vitiated by a defect which is not curable and is thereforefatal. Such proceedings and the conviction entered in the course ofsuch proceedings are bad and must be set aside.
Learned Crown Counsel drew my attention to s. 71 of the CourtsOrdinance and submitted that as the accused had pleaded withouttaking a plea to jurisdiction any objection had been waived and thatthe District Court must be taken and held to have had jurisdiction overthe prosecution. The matter is not free of difficulty but it is notnecessary to consider it. At the commencement of the proceedings inthe District Court the indictment was amended and thereupon Counsel forthe accused indicated that he had a preliminary objection and askedthat the plea of the accused be taken on the following day. The learnedDistrict Judge stated that he had no power to put off taking the pleaand he proceeded to take it. He then put off the trial as the prosecutionwas not ready. In the circumstances, it would not, in any event, befair to deprive the appellant of the benefit of the objection. I
I allow the appeal and I quash and set aside the proceedings of theMagistrate’s Court as well as the trial proceedings in the District Courtand the conviction of and the sentence imposed on the appellant.
Wijayatilake, J.—I agree.
Appeal allowed.