081-NLR-NLR-V-18-ARNIS-v.-CHARLES-et-al..pdf
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Present: De Sampayo A.J.
ARNIS v. CHARLES et al7IQ—P. C. Negombo, 21,653.
Non-summary proceedings—Magistrate must give the accused notice of hisintention to try them summarily.
Proceedings in this case commenced by the Magistrate takingnon-summary proceedings, but after the medical officer deposedto the injuries being non-grievous, the Magistrate framed chargesagainst the accused under sections 814 and 818 of the Penal Code*and took their pleas. The witnesses previously called were thencross-examined, and evidence for the defence was also heard, andthe accused were convicted.
Held, that the proceedings were irregular. Daniel v. Romanis 4commented upon.
fjl HE facts appear from the judgment.
Elliott, for first accused, appellant.
A. L. R. Aserappa. for complainant, respondent.
Cur. adv. cult.
August 25, 1914. J)e Sampayo A.J.—
The proceedings in this case .are embarrassing, if not whollyirregular. Three persons were chai*ged under sections 314" and 315of the Penal Code with causing hurt to the complainant, and after -the examination of a police constable the Magistrate recorded hisintention to take non-summary proceedings, which were takenaccordingly. A certain number of witnesses were examined for theprosecution, their cross-examination being for some reason or other
*4 5. C. D. si.
1914.
( 388 )
1014.
D* SavpayuA.J.
* ArmU r.Charles
deferred. But after .the medical officer had been examined andhad deposed to the injuries on the complainant being non-grievous,the Magistrate framed charges against the accused under sections314 and 315 of the Penal Code, and their pleas were taken. Thewitnesses previously called were then cross-examined, evidence forthe defence was also heard, and in the result the accused wereconvicted. The Magistrate made no record that he was convertingthe non-summary proceedings* into a summary trial, nor were theaccused at any time informed of such an intention. In Saram v.Meeta and Charles v. Charles 2 it was decided that where in thecourse of non-summary proceedings the Magistrate should find thatfacts proved amounted to an offence triable by him summarily,the proper course was to stay proceedings as a non-summary inquiry,fiuxne a fresh charge, and give notice to the accused that he wasnow on his trial. In Charles v. Charles – it was even held, thatthe accused should be formally discharged before the summarypixxieedings commence. Referring to these decisions, WoodRenton J., in Daniel v. Romanis3, observed that they were givenprior to the Criminal Procedure Code of 1888. and considered thatin view of'section 172 of that Code they were no longer applicable.With deference. I am unable to take the same view. Section 172 inquestion merely authorizes a Court to. alter any charge at any timebefore judgment is pronounced, but requires such alteration to beread arid explained to the accused; and exactly similar provisionswere contained in section 201 of the old Criminal Procedure Code of1883, so that the authority of the above decisions is not affected bythe enactment of the new Criminal Procedure Code. Moreover,the present is not u case of alteration of charges, as was the case inDaniel v. Romanis 3; the charges remain identically the same, but,the nature of the proceedings is wholly altered, and of this, I thinktlie accused were entitled, ex tlcbito justitia, to have distinct notice.I think the proceedings in this case materially prejudiced theaccused, and the conviction of the first accused-appellant ought noton that ground to be sustained.
I think also the first accused-appellant is entitled'to succeed onthe merits.
. Acquitted.
ll N. L. R. 85.=2 N. L. R. 187.
.i’ll. C. D. 61.