Sri Lanka Law Reports
(1991) 1 Sri L.R
ABDUL SAMEEMVTHE BRIBERY COMMISSIONERCOURT OF APPEAL
A. DE Z. GUNAWARDENA. J,
C. A. NO. 1/90
M. C. COLOMBO NO. 87884/1
SEPTEMBER 05, 1990 AND OCTOBER 09, 1990
Criminal Procedure – Accused appeared in Court on summons – Failure by Magistrate toframe Charge – Whether defect curable – Code of Criminal Procedure Act No. 15 of 1979- Sections 139(1), 182(1), 182(2), and 436.
The proceedings were instituted under section 136(1 )(b) of the Code of Criminal ProcedureAct15 of 1979, on a written report by the Bribery Commissioner to the Magistrate that
the accused had committed two offences under the Bribery Act. The accused appeared onsummons. The Magistrate adopted the said report by placing a seal.
that there was a failure to frame a charge by the Magistrate as required under section182(1) and read it to accused as contemplated under section 182(2).
that the failure to frame a charge, as required under section 182(1) is a violation of afundamental principle of criminal procedure, and is not a defect curable under section436 of the Code of Criminal Procedure Act No. 15 of 1979.
PerGunawardana J„ "Furthermore whilst appreciating the pressures on time and thelarge volume of work the Magistrate's Courts are called upon to handle, it isnevertheless important, that rights of an accused person are safeguarded and that hebe brought to trial according to accepted fundamental principles of criminal procedure."
Cases referred to:
Ebert v.Perera 23NLR366
T. S ntosan Nadar V. The Attorney-General 79(2) NLR 1/2
Fernando V. The Attorney-General 2 Sri Kantha Law Reports 1
State V. Piyasena 3 Sri Kantha Law Reports 86
Godawela Ralalage Dingiri Banda V The Attorney-General 1986 2 Sri Kantha LawReport 356.
CA Abdul Sameem V The Bribery Commissioner (Gunawardena, J.)77
APPEAL from conviction by Magistrate's Court of Colombo.
Ranjit Abeysuriya P.C. with D.P.S. Jayawardena and Achala Wengappuli for accused- appellant.
Miss I. Demuni State Counsel for Attorney-General
Cur. adv. vult.
January 16, 1991.
DE Z. GUNAWARDENA J.
The accused-appellant was charged in the Magistrate's Cou rt of Colombowith having committed the following offences:-
That on or about Sept. 22, 1987 at Kurunegala, the accused-appellant being a public servant, to wit, a Grama Sevaka, accepteda sum of Rs. 15/- as a gratification from one C.H. Hajirine, for theperformance of an official act, an offence punishable under section19(b) of the Bribery Act.
That at the time and place aforesaid and in the course of the sametransaction, the accused-appellant, being a public servant, asaforesaid, accepted a sum of Rs. 15/- as a gratification from thesaid Hajirine, an offence punishable under section 19(C) of theBribery Act.
After trial the accused-appellant was acquitted on count 1 and convictedon count 2 and sentenced to one year simple imprisonment, which wassuspended for a period of 5 years, and a fine of Rs. 500/-. This appealis from the said conviction and sentence.
The learned Counsel forthe accused-appellant submitted that the learnedMagistrate has failed to comply with the provisions of section 182 ofthe Code of Criminal Procedure Act No. 15 of 1979, in that the learnedMagistrate has failed to frame a charge against the accused-appellantand read such charge to the accused-appellant. It must be noted thain this case the accused-appellant had appeared in Court on 23.06.1988upon summons being served on him. However, the learned Counselfor accused-appellant contended that, the provision in section 182 ofthe Code of Criminal Procedure Act No. 15 of 1979 does not make adistinction between accused persons brought before the Court on summonsor warrant and accused persons brought before Court without suchsummons or warrant. In order to appreciate the change brought aboutbysection 182 of the Code of Criminal Procedure Act No. 15 of 1979 Iwould quote the two sections. The section of the Criminal Procedure
Sri Lanka Law Reports
Code, (1898) which is the equivalent of section 182 of the present Code)
reads as follows:-
Where the accused is brought before the Court otherwise than on asummons or warrant the Magistrate shall after the examinationdirected by section 151 (2), if he is of opinion that there issufficient ground for proceeding against the accused, frame a chargeagainst the accused.
In cases where the accused appears on summons or warrant it shallnot be necessary to frame a charge but the statement of theparticulars of the offence contained in the summons or warrant shallbe deemed to be the charge and the provisions of this Code as to theamendment and alteration of charges shall apply to the sameaccordingly.
The Magistrate shall read such charge or statement, as the case maybe, to the accused and ask him if he has any cause to show why heshould not be convicted:
Provided that in all cases in which a prosecution commenced on awritten report under section I48(1)(b), and such report amended ifnecessary by the Magistrate, discloses an offence punishable withnot more than three months' imprisonment or a fine of fifty rupees, itshall be lawful for the Magistrate to read such report, amended ifnecessary, as a charge to the accused and ask if he has any causeto show why he should not be convicted.
Act No. 15 of 1979 states:-
– where the accused is brought or appears before the Court theMagistrate shall if there is sufficient ground for proceeding against theaccused, frame a charge against the accused.
The Magistrate shall read such charge to the accused and ask him ifhe has any cause to show why he should not be convicted.
Thus under the present law the following changes are discernible.
There is no distinction made in regard to the requirement for the
Abdul Sameem V The Bribery Commissioner (Gunawardena, J.)
Court on summons or warrant, or is brought before Court withoutsuchprocess. This change has been effected by adding the words"or appears”, and by the omission of the words" otherwise than ona summons or warrant," which were found in section 187(1).
The requirement for the Magistrate to examine on oath the personwho has brought the accused before the Court and any other personwho may be present in Court able to speak to the facts of the casehas also been done away with, under section 182(1). This has beeneffected by the omission of the following words which were therein section 187(1), viz. "after the examination directed by section151(2), he is of opinion that."
In the light of the above changes made to section 187(1), the subsection
and the proviso to subsection (3) of the said section have beenomitted. Consequentially, the words "or statement as the case may be,"in sub-section (3) of the said section have also been deleted.
The resulting position is that under the provisions of said section 182there is now no distinction between an accused person appearing onsummons or warrant or brought before Court without such process. Inboth instances a charge has to be framed by the Magistrate, if thereis sufficient ground for so doing. In addition, the requirement for theMagistrate to examine on oath the person who brought the accusedbefore the Court and any other person who may be present in Courtable to speak to the facts of the case, has also been dene away with.
Under section 139(1) of the Code of Criminal Procedure Act No. 15 of1979 the Magistrate is required if he "is of opinion that there is sufficientground for proceeding against some person who is not in custody" toissue a summons or warrant as the facts of the case warrant. Thus theMagistrate is required to form an opinion as to the sufficiency of thegrounds for proceeding against a person at the stage the summons orwarrant is issued. It may be noted here that the words " is of opinion"have been omitted in the said section 182(1) and merely states "if thereis sufficient grounds for proceeding against the accused, it may be thatsince the Magistrate has already formed an "opinion that there is sufficientground for proceeding against the accused, "when the summons orwarrant was issued that the words "is of opinion" have been omitted.However, the fact remains that both at the stage of the issue of summonsor warrant and at the time the accused is brought or appears beforeCourt it is necessary that there must be "sufficient ground for proceeding
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(1991) 1 Sri L.R.
against the accused." Thus in a case where the accused appears beforethe Court on summons or warrant the Magistrate is required to satisfyhimself that there are grounds for proceeding against the accused ontwo occasions viz. once at the stage where the summons or warrantis issued and later when a charge is to be framed upon his appearance.However, in a situation where accused is brought before Court withoutsummons or warrant, then the Magistrate is required to satisfy himselfonly once; that is, when a charge has to be framed, upon his beingsatisfied that there is sufficient ground to proceed against the accused.These are the peculiarities of the law, as it stands today, which thedraftsman seems to have overlooked. Under the earlier law this situationwas avoided by the pro vs ion in section 187(2) which permitted thestatement of particulars in the summons or warrant to be adopted asthe charge.
The underlying principle in the said requirement, is that, an independentjudicial mind is required to assess the sufficiency of the material availableagainst the accused even before summons or warrant is issued in oneinstance and in any event before a charge isframed. This is a very salutaryand a fundamental feature of our Criminal Procedure which would ensurethe protection of the liberty of the subject. It is in that light that we haveto view the validity of the objection taken by the learned Counsel foraccused-appellant, that failure to frame a charge would vitiate theconviction of the accused-appellant.
It appears from a perusa1 of the record in this case that the learnedMagistrate has mechanically adopted the report filed by a BriberyDepartment official, both at the stage of issue of summons, and alsoat the time the plea was recorded. The first journal entry at page 5 ofthe record shows, that an entry had been made giving the noticereturnable date i.e. 23.6.88, and the learned Magistrate has initialledit. On the notice returnable date when the accused-appellant appearedin Court, a seal which is not decipherable, had been placed, and thecase had been fixed for tr>al. The learned State Counsel submitted thatthe said rubber seal contains the following information:-
the change was read to the accused from the charge sheet/plaint/report.
the accused pleaded not guilty.
a date was fixed for trial.
summons were issued to the witness for the date, for which the caseis fixed for trial.
CAAbdul Sameem V The Bribery Commissioner (Gunawardena, J.)81
The learned Counsel for the accused-appellant argued that even if thecontents of the seal as alleged by the learned State Counsel is conceded,it does not prove that a charge had been framed by the learned Magistrateas required by the imperative provisions of section 182(i). It is importantto point out here that the words used are "the Magistrate shall" (emphasismine) frame a charge against the accused.
The learned State Counsel further contended that the document found atthe end of the record at pages 51 and 52, is evidence of sufficientcompliance with the provisions of section 182(1). In that document theword(notguility) had been written and apparently initialled by
the learned Magistrate with the date 6/23. However, upon an examinationof the said document it is clear that it is an exact copy of the report filedin this case by the Bribery Commissioner which appears at pages 4 and5 of the record. It is significant to note that the said document which thelearned State Counsel, alleges to be equivalent of the charge sheet, itselfstates that it is a report made by the Bribery Commissioner to the Courtin terms of section 134(1)(b) (it should be section 136(1) (b)) of the Codeof Criminal Procedure Act No. 15 of 1979). The only difference is that theoriginal report appearing at pages 4 and 5 of the record is signed by theBribery Commissioner himself and the said document at pages 51 and52 is initialled by an official on behalf of the Bribery Commissioner, whichalso goes to show that the said document is a document prepared by theBribery Commissioner's department, which ought not be the case if it isa charge sheet containing the charges framed by the learned Magistrate.This leads us to the inference that the learned Magistrate has failed toframe the charges having satisfied that there are reasonable grounds todo, as required under section 182(1), instead had adopted a documentwhich has been submitted to Court by a Bribery Commissioner'sDepartment official. Thus the contention of the learned State Counsel thatthe learned Magistrate has complied with the imperative provisions ofsection 182(1), fails. The direct effect of non compliance with section182(1) is that it becomes practically impossible to comply with provisionsof section 182(2), which requires that the charge must be read to the:accused. Because, when there is in fact no charge framed by the learnedMagistrate, then there is no question of reading it to the accused. Hencethere is non-compliance with section 182(2) also* in the instant case.
Now the question to be considered is, what is the effect of such non-compliance. In the old Ceylon Criminal Procedure Code No. 3 of 1883,section 483 provided that a finding or sentence should not be invalid
Sri Lanka Law Reports
(1991) 1 Sri L.R.
merely on the ground that no charge was framed unless there was anactual miscarriage of justice. However, this provision was omitted in theCriminal Procedure Code No. 15 of 1898. The section 494, whichprovided for curing irregularities of the charge was retained as section425 of the Criminal Procedure Code No. 15 of 1898. The section 425of the Criminal Procedure Code No. 15 of 1898 is at present substantiallyenacted as section 436 of the Code of Criminal Procedure Act No. 15of 1979. Hence at present there is no express provision directly dealingwith the failure to frame a charge by the Magistrate. The learned StateCounsel, however sought to argue that provisions of section 436 arewide enough to cover this situation as well.
In this regard I would like to refer to the following passage of Ennis J.,in the full bench decision, in Ebert vs. Perera (1):
"The terms of section 425 so far as necessary for consideration inthis case are:-
"subject to the provision hereinbefore contained no judgement…shall be reversed or altered on appeal… on account of any error,omission or irregularity in (my emphasis) the . . . charge"
An omission of the charge altogether is not covered by this section,which relates to omissions "in” the charge. Moreover, the sectionis expressly made subject to the earlier provisions of the Code,among which is the prevision in the provisio to section 187 allowinga report to be read as a charge within the limits set out by the proviso.
I would add that the formulation of the charge or statement in asummons or warrant on a review of the facts by an independentperson is, in my opinion, a fundamental principle in our criminalprocedure as now laid down in the Code of 1898, and the provisoin section 187 was necessary to make the slightest departure fromit lawful."
Having stated so, Ennis J went on to hold that the failure to frame acharge is fatal to the conviction. De Sampayo J. and Schneider J. agreedwith the said finding.
De Sampayo J. in a separate judgement emphasised that it is a fundamentalprinciple that there should be a definite charge and that the law imposes
Abdul Sameem V The Bribery Commission (Gunewardene, J.)
that duty onthe Magistrate toframeacharge. DeSampayo J.consideringthe question whether section 493 of the old Code (1883) was droppedbecause section 425 of the Code of 1898 was sufficient to cover thecase of omission of the charge, at page 367, stated thus,
"But that cannot be, because what section 425 provides is not forthe case of omission of the charge, but of omission in the charge.That is to say, an omission, for instance, of the necessary particularsin the charge may be regarded as an irregularity which may be curedby the application of section 425, if no prejudice has been therebyoccasioned to the accused. But the entire absence of a charge, wherethe Magistrate ought to have framed one, is not a mere irregularitywhich may be overlooked under section 425, but is a violation ofthe essential principle generally governing criminal procedure andvitiates a conviction."
Malcolm Perera J. with Tittawela J. agreeing with him in the caseof T. Santhosan Nadar vs. The Attorney-General (2) followed thesaid dicta of Sampayo J. and quashed the conviction in the said case,where there was an omission to frame a charge.
In Fernando vs. The Attorney-General (3) where a seal was placed,and no charge sheet was found in the record, as in the instantcase,Seneviratne J. held that there was a failure to frame a charge, whichvitiated the conviction. Seneviratne J. followed the above decision inthe case of the State vs. Piyasena (4) and held that not framing acharge in a criminal trial is a breach of a fundamental principle of criminalprocedu re and set aside the conviction and sentence and ordered a freshtrial.
Thus it is seen that all the aforesaid authorities have held that the omissionto frame a charge is a breach of a fundamental principle of criminalprocedure and that such failure is fatal to a conviction. Furthermore ithad been pointed out that the provision of section 425 of the Code of1898, is not sufficient to cover such a defect, as it deals with the caseof irregularities in the charge and not a situation where there is a totalabsence of a charge.
The learned State Counsel also cited the case of Godawela RalalageDlngiri Banda vs. The Attorney-General (5). The Counsel for the
Sri Lanka Law Reports
accused had argued in that case that his client had not been properlycharged, because there was no charge sheet indicating that chargeswere framed by the learned Magistrate as required under section 182(1).The learned Magistrate in his judgement has stated that accused wascharged in accordance with the plaint, which inferentially would meanthat the learned Magistrate had not framed a charge as required undersection 182(1), but had read the charge from the plaint. However, asexplained earlier there is no provision in law as at present, to read thecharge from the plaint.
Goonewardena J. in his judgment has stated:-
"The question then is whether as in the case before us the absenceof such a charge reduced to writing as appears to be the requirementof section 182 of the Code of Criminal Procedure Act No. 15 of 1979invalidates the trial. Upon a careful consideration of the circumstancesand being mindful of the actual day to day working of Magistrate'sCourts, I venture to state that the answer to that question shouldbe in the negative unless the failure to reduce the charge to writingoccasioned also a failure of justice. In the case before us it cannotI think be said that there was such a failure of justice."
The learned Counsel for the accused-appellant in his writtensubmissions dealing with the above judgment has stated that,
"This is a decision the authority of which is impaired by the failureof the Court to give consideration to the several previous decisionsof the Supreme Court including the full bench decision in 23 NLR362. It is my submission that this decision should not therefore befollowed".
On a perusal of the said judgment, it is apparent that the authoritiesthat I have reviewed earlier have not been considered in the said judment.Therefore there is substance in the said submission of the learnedCounsel for the accused-appellant.
Furthermore whilst appreciating the pressures on time and the largevolume of work the Magistrate's Courts are called upon to handle, itis nevertheless important, that rights of an accused person are safeguarded,and that he be brought to trial according to accepted fundamentalprinciples of criminal procedure. In that context it would be appropriate
The Attorney-General V Chandrasena
to note that, the matter to be decided is a legal issue and the legalconsequences that flow from it. The previous authorities which I discussedabove, have rightly approached the problem from that perspective. I ampersuaded by their reasoning and am inclined to the view that the failureto frame a charge, as required under section 182(1) is a violation ofa fundamental principle of criminal procedure, and is not a defect curableunder section 436 of the Code of Criminal Procedure Act No. 15 of 1979.Therefore, in view of the earlier finding I have made, that the learnedMagistrate has failed to frame a charge in terms of section 182(1), inthe instant case, this conviction cannot stand. Hence I would allow theappeal of the accused-appellant. Accordingly I hereby set aside theconviction and sentence of the accused-appellant and remit the casefor a trial de novo before another Magistrate, in the Colombo Magistrate’sCourt.
Case sent backfor trial de novo.