HOWARD C.J.—Assen and Maradona Police.
1944Present: Howard C.J.ASSEN, Appellant, and MABADANA POLICE. Respondent.
141—M. C. Colombo, 27,994.
Criminal Procedure—Report from Police Officer—Failure to examine Police Officer—Nota fatal irregularity—Criminal Procedure Code, s. 148 (b).
' Where the accused was charged trader section 450 of the Penal Code on a reptortpresented by a Police officer in terms of section 148 (b) of the Criminal ProcedureCode and the Magistrate without examining on oath the Police officer who broughtthe accused before the Court in accordance with section 151 (2) of the CriminalProcedure. Code tried the accused and convicted him,—
Held, that the failure of the Magistrate to examine the Police officer on oathwas not a fatal irregularity.
^ PPEAL from a conviction by the Magistrate of Colombo.
E. D. Cosme for the accused, appellant.
E. H. T. Gunasekera, C.C., for the complainant, respondent.
Cur. adv. vult.
March 30, 1944. Howard C.J.—
In this case the accused was brought before the Magistrate, Colombo,on November 18, 1943, charged under section 450 of the Penal Code withbeing found within the premises No. 198/19, Panehikawatta road,Maradana, and failing to give a satisfactory account of himself. A Policeofficer also presented a report to the Magistrate in terms of section 148 (b)of the Criminal Procedure Code. The Magistrate, without examining onoath the Police officer who brought the accused before the Court in accord-ance with section 151 (2) of the Criminal Procedure Code, charged theaccused and took his plea of “ not guilty ”. The case was then adjournedto December 21, 1943, when the accused was found guilty. On December27, 1943, he was sentenced to three months’ rigorous imprisonment.
It is contended on behalf of the appellant that, having regard to thefailure of the Magistrate to examine the Police officer on oath, there was afatal irregularity in the proceedings which must be quashed. In thisconnection my attention has been invited to the judgment of Soertsz J.in Vargheese v. Perera 1. In that ease the requirement of section 151 (2)was also disregarded and the accused was charged from a report whichSoertsz J. observed could only be done after observing section 151 (2)and only if the offence disclosed was one punishable with not more thanthree months’ imprisonment. In the case before Soertsz J. the offencewas punishable with more than three months’ imprisonment. In thepresent case the offence was punishable with three months’ imprisonment.To this extent the facts differ. No doubt strict compliance has notbeen made with section 151 (2). But is this irregularity fatal? InSuperintendent, D’ea Ela Estate v. Mudalihamy 2 proceedings were initiatedon the written report of the Korale and at the same time the accused was1 43 N. L. R. 564.* 1 C. W. R. 216-
264HOWARD C.T.—Assert and Maradona Police.
produced in the custody of a peace officer. Neither the Korale nor theSuperintendent of the Estate, the complainant, was examined on oath,but only a watcher of the complainant. Wood-Renton C.J. held that hewould not be prepared to hold that the failure of the Magistrate tocomply with the requirement of the section would be a fatal irregularity.He said in this connection : —
“ If that were so,, we would have to consider the effect of sub-section 4of section 149, which provides that, where a person is brought before aMagistrate in custody, the Magistrate shall forthwith examine on oaththe person who has brought the accused before the Court, and anyother person who is present in Court able to speak to the facts of thecase. I should not be prepared to hold that the failure of the Magistrateto comply with the requirement of this section, in a case like the present,where the evidence of the watcher was immediately available and whereno kind of prejudice resulted to the accused from the non-examinationof the peace officer, would be fatal to the proceedings.”
The Came view appears to have been taken by Schneider A.J. in de Silvav. Davith Appuhamy1. In that case the Magistrate failed to make theexamination as directed by the section (then 149 (4)—(now 151 (2) ) andalso to frame a charge. The learned Judge held that the failure to framea charge was a fatal irregularity. He did not, however, hold that thefailure to comply with section 149 (4) was a fatal irregularity.
As the accused has not in any way been prejudiced, the failure to complywith section 151 (2) was not a fatal irregularity. I, therefore, affirm theconviction and, in view of the fact that the accused has two previousconvictions, I am not prepared to vary the sentence. The appeal isdismissed.
* '/ C. W. R.19.
ASSEN, Appellant, and MARADANA POLICE. Respondent