049-NLR-NLR-V-40-ATTAPATTU-v.-PUNCHI-BANDA.pdf
Attapattu v. Punchi Banda.
169
1938
Present: Moseley, Keuneman and de Rretser JJ.ATTAPATTU v. PUNCHI BANDA.
45—P. C. Ratnapura, 17,623.
Criminal Procedure—Charge under section 180 of Penal Code—Plaint notsanctioned by Attorney-General nor instituted by Public Officer—Objec-tion taken at close of prosecution—Powers of Supreme Court—CriminalProcedure Code, s. 425.
The accused was charged with having given false information to theExcise Commissioner an offence punishable under section 180 of the PenalCode. Proceedings commenced with a written report under section148 (1) of the Criminal Procedure Code by a Superintendent of Excise.The plaint was not sanctioned by the Attorney-General but it bore theendorsement of the Excise Commissioner, “ I sanction the prosecution ”.At the close of the case for the prosecution, Counsel for the accused tookthe objection, that the Court had no right to take congnizance of the caseinasmuch as the provisions of section 147 (a) of the Criminal ProcedureCode had not been satisfied. The Magistrate overruled the objection.
Held, that the Magistrate was right in proceeding to determine thecase as the. objection had been taken at a time when the irregularitycould not have been cured.
Held, further, that the Supreme Court had power in such a case to actunder section 425 of the Criminal Procedure Code where it is satisfied,that the irregularity had not occasioned a failure of justice.
Halliday v. Kandasamy (14 N. L. R. 492) followed; Inspector ofPolice v. Meera Saibo (3 C. W. R. 149) referred to.
HE accused-appellant was charged under section. 180 of the Ceylon
JL Penal Code with having given to the Excise Commissioner, a publicservant, false information with intent to cause him to use his lawful powerto the injury of an Excise Inspector. Proceedings were instituted on areport made by a Superintendent of Excise and across it there was thesuperscription “ I sanction this prosecution. Signed S. H. Wadia, ExciseCommissioner”. The accused who was convicted appealed. The appealwas argued before His Lordship the Chief Justice who referred the matterto a Bench of three Judges. The terms of reference are set out in the.judgment of Moseley J.
Colvin R. de Silva, for accused, appellant.—The finding of facts are notcanvassed. The point to be decided, is technical but substantial. At theclose of the prosecution the Counsel for the accused submitted that theaction was not properly constituted in that that the plaint was not filedwith the sanction of the Attorney-General nor by the Excise Commissioneras required by section 147 (1) of the Criminal Procedure Code 1898. Theperson concerned in section 147 (1) (a) is the person to whom the com-plaint was made. It implies' that the Court cannot determine an actionunless its provisions are complied with. Hence when it is brought to thenotice of the Court that they are not complied with, the Court has nojurisdiction to proceed with the action. The irregularity cannot be curedIn the lower Court with the help of section 425 of the Criminal ProcedureCode. Even if it was curable it should have been done when it had theright to do so and not after the close of the prosecution.
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170
MOSELEY J.—Attapattu v. Punchi Banda.
The purpose of 4he provisions of section 147 is to create a class ofpersons who alone can launch prosecutions under section 180 of theCeylon Penal Code. It was held in Inspector of Police v. Meera Saibo'that section 147 had been enacted to prevent frivolous prosecutions.They are imperative as far as the lower Court is concerned.
Section 425 applies only When the Magistrate has acted in inadvertence,{section 537 of the Indian Criminal Procedure Code corresponds to section425 of the Ceylon Code. See Nilvatan' Sen v. Jogesh Chundra Bhutta-charjee *.
J.W. R. Ilangakoon, K.C., A.-G. (with him E. H. T. Gunasekera, C.C.),for complainant, respondent.—Section 425 of the Criminal ProcedureCode, 1898, imposes a prohibition or restriction on the Supreme Court.It is immaterial whether the objection has been taken in the lower Courtor not. The only point to be considered is whether there had been a .failure of justice. See Halliday v. Kandasamy *, Murphy v. PunchappuRodrigo v. Fernando and othersand Batuwantudawa v. Karunaratna *.
Cur. adv. vult.
December 19, 1938. Moseley J,—
This appeal, originally came before Abrahams C.J., who referred it to aBench of three Judges. The facts of the case appear in the order ofreference, which is as follows: —
“ The appellant in this case was charged under section 180 with havinggiven to a public servant, to wit, the Excise Commissioner, Mr. Wadia,information which he knew or believed to be false, intending thereby tocause the Excise Commissioner, o^ knowing it to be likely that he wouldcause the Excise Commissioner, as a public servant, to use his lawfulpower to the injury or annoyance of an Excise Inspector. Proceedingsapparently were instituted on a report made by D. V. Attapattu,Superintendent of Excise, in terms of section 148 (1) (b) of the CriminalProcedure Code, and Mr. Attapattu signs himself as complainant. Thisreport bears the superscription. ‘ I sanction this prosecution. SignedS. H. Wadia, Excise Commissioner’. This was done presumably in anattempt at compliance with section 147 (1) (a) which states that no CourtShall take cognizance of certain offences, this offence among others, exceptwith the previous sanction of the Attorney-General or on the complaint ofthe public servant concerned or of some public servant to whom he issubordinate. Now it is obvious that this indication of sanction onMr. Wadia’s part does not constitute this the complaint of Mr. Wadia asthe public seryant, concerned, and further, as the sanction of the Attorney-General had not been obtained, there was therefore a statutory bar to theCourt proceeding with this trial. However, section 425 of the CriminalProcedure Code enables this Court on appeal or revision to permit suchan irregularity provided that no failure of justice has been occasioned.But it has been pointed out by learned Counsel for the appellant, who infact conducted the defence in the lower Court, that before proceeding tocall his defence he argued that the prosecution was wrongly constitutedand must therefore fail inasmuch as there was no complaint of the public
(1916) 3 C. W. R. 149.* (1991) 23 N. L. R. 274.
(1896) 23 -Cal. 983.'5 (1909) 1 Cur. Law Rep. 129.
(1911) 14 N. L. R. 492.6 (1922) 4 Cey. Law Rea. 64.
MOSELEY J.—Attapattu v. Puncfci Banda.
171
servant to whom the complaint was made. It was also pointed out tothe Magistrate that the sanction of the Attorney-General, which otherwisewould have been an efficient substitute for the complaint of Mr. Wadia,had not been obtained either. Counsel for the defence went on to arguethat it was too late now to go on inasmuch as section 425 gave authorityto the Appeal Court and not to the Court of trial to cure this irregularityif no miscarriage of justice was in fact occasioned. The Magistrate in asomewhat elaborate order treated this objection as raising merely atrifling irregularity and he stated that the accused cannot claim that hehas in the least bit been prejudiced by the failure of the complaint to besigned by the actual complainant or to obtain the previous sanction ofthe Attorney-General. It seems to me that the learned Magistrate waseither endeavouring to anticipate the decision of the Court of Appeal orwas usurping the functions of the Court of Appeal, it does not matterwhich. But the question really is whether the objection having beentaken at as late a stage as after the close of the case for the prosecution itcan now be said that the Magistrate was wrong in not adjourning theproceedings for the sanction of the Attorney-General to be obtained. Canthis Court, where an accused person demands that the provisions of thelaw should be complied with, investigate the matter and decide whetherthis failure to obtain, the sanction of the Attorney-General did in factoccasion a miscarriage of justice ? I am inclined to think that theobjection was taken at so late a stage as to preclude the accused nowfrom contending that the provisions of the law ought to have beencomplied with as soon as he made the objection, no matter at what stagehe took it. If this were not so, an accused person might deliberatelypermit the case for the prosecution to develop and then when he discoveredthat he had no genuine answer to it endeavour to postpone his convictionby demanding the right to a strict compliance with the law. But so faras I can see, the matter is res Integra. The only case that was cited to me,and it was also cited in the lower Court (Inspector of Police v. MeeraSaibo’), although of some use in elucidating the exact situation,nevertheless does not cover the point.
I think this matter is of sufficient importance to go before a larger .Bench for decision, and I accordingly direct that the case be listed forargument before a Bench of three Judges”.
What, in effect, we are asked to decide is whether the learned Magistratewas right in proceeding to determine the case after it had been brought tohis notice that the requirements of section 147 (1) (a) had not beencomplied with.
Counsel for the appellant relied upon the opening words of sec- -tion 147 (1) —“ No Court shall take cognizance . . . . and investedthe term “ cognizance ” with'the meaning of “ hearing and determining ”.Once the fact of non-compliance with the requirements of the section wasdiscovered, said he, the Court had no jurisdiction to overlook the omissionand proceed to determination of the case. It is beyond argument thatthe powers'conferred by section 425 of the Criminal Procedure Code mayonly be invoked by a Court of appeal or revision, and Mr. de Silva con-tended that it was not for the Magistrate to consider the possibility of the
1 3 C. W. R. 149.
172MOSELEY J.—Attapattu v. Punch* Banda.
exercise of those, powers by this Court. He submitted that the omissionwas not properly curable in the trial Court, and that if in practice it wascurable, that could only be done before the case for the prosecution wasclosed.
The Attorney-General argued that it was immaterial whether theobjection was taken in the lower Court, and therefore, presumably, ifobjection were taken, it was immaterial at what stage of the proceedingsit was taken. He cited the case of Holliday v. Kandasamy in which theapplicability of section 423 (the purport of which is similar to that ofsection 425). was considered. In that case Lascelles C.J. said: —
“ It was said that the section should only apply when no objectionwas taken to the jurisdiction in the Court of first instance. But there- is nothing in the section or in the context which lends the slightestsupport to this suggestion. To engraft such a proviso or exception onthe section would, in my opinion, be an unjustifiable encroachment onthe province of the Legislature.”
It seems to me that these observations, with which I respectfully. agree, are equally applicable to section 425. If this proposition isaccepted, it seems unreasonable to differentiate between the variousstages of a proceeding at which objection might be taken.
Counsel for the respondent proceeded to argue that the provisions ofsection 245 are imperative and that this Court is prohibited from inter-fering with the judgment of the lower Court unless the irregularitycomplained of has occasioned a failure of justice. In this connection itmay be borne in mind that although the complaint of which the Courttook cognizance was not that of the officer concerned, it has in factreceived his written sanction. ■ In The Inspector of Police v. Meera Saibo',tire prosecution was based upon a report made by the police, on the faceof which was an endorsement signed on behalf of the Government Agentby the Office Assistant to the effect that the prosecution was authorised.It is true that in that case the Government Agent, in addition to author-ising the prosecution, actually appeared in Court and gave evidence.De Sampayo J. had “ no doubt that the purposes of section 147 werepractically satisfied He went on to say, “ The objection was takeno->ly at the close of the case, and the irregularity in no way occasionedany failure of justice ”. Our attention was also drawn to the cases ofManuel v. Kanapanickan3 and Murphy v. Punchappu *, in each of whichthe application of section 425 was approved in the absence of a failure ofjustice. A similar view was taken by Wood Renton J. in Rodrigo v.Fernando and othersc, and by Bertram C.J. in Batuwantudava v. Karu-naratna’.
The obvious intention of section 147 is to protect private persons fromfrivolous and vexatious prosecutions. If, in the present case, there had' existed grounds for believing that prosecution wras frivolous or vexatious,the validity of the complaint would have been queried by the defence atthe., outset and the irregularity discovered. We are,' however, informed» 14 N. L. R. 493.*33 N. L. R. 374.
■ 2 3 C. W. R. 149. -5 X Cur. Law Rep. 129.
9 14 N. L. R. 180.e (1922) 4 Cey. Law Rec. 04.
Appuhamy v. Per era.
173
by Counsel for the appellant that the irregularity was not discovered untilafter the close of the case for the prosecution. At no time has it beensuggested that the prosecution Was frivolous or vexatious.
Two Indian decisions were also brought to our notice. In Mozumdarv. Mozumdarl, it was held that section 537 of the Indian Criminal Pro-cedure Code (the counterpart of our section 425) could not refer to a case' in which the want of sanction was directly brought to the notice of theMagistrate “ at the commencement of the proceedings before himThe compelling inference is that it does apply when the irregularitybecomes apparent at a later stage.
In Nilratan Sen v. Jogesh Chundra Bhuttacharjee Banerjee J. said,“When an objection is taken on the ground of there being a materialerror, omission or irregularity before a case is finally disposed of, andwhile there is time to correct the same, it would be unreasonable to holdthat section 537 intends the error, omission or irregularity to be allowedto remain uncorrected”. In the case before us the case for the prose-cution had closed and the time for correcting the irregularity had thereforepassed. The only way in which it can be corrected is before this Court.The learned Magistrate, in my view, adopted the proper course in proceed-ing to determine the case.
I can see no reason for interfering with the conviction on the groundadvanced or on any other ground.
The appeal is dismissed and the conviction and sentence affirmed.Keuneman J.—I agree.de Kretser J.—I agree.
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Appeal dismissed.