037-NLR-NLR-V-63-CLAUDE-SILVA-Appellant-and-T.-C.-JOSEPH-Sub-Inspector-of-Police-Respondent.pdf
Claude Silva v. Joseph
189
I960Present: Weerasooriya, J.CLAUDE SILVA, Appellant, and T. C. JOSEPH (Sub-Inspector of
Police), Respondent
S. G. 1170—M. C. Colombo South, 97273
Criminal Procedure Code—A.ccused brought before Court otherwise than on summons orwarrant—Examination of witnesses—Framing of charge thereafter—Duty ofMagistrate to form opinion that- there is sufficient ground, for proceeding againstthe accused on any particular count—Sections 151 (2), 187 (1), 425.
When an accused is brought before the Court otherwise than on a summonsor warrant, section 187 (1) of the Criminal Procedure Code precludes the Magis-trate from framing a charge on counts other than those disclosed by the evidencerecorded by him in terms of section Iol (2). The irregularity of convictionson such counts is not curable under section 425.
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WEERASOORIYA, J.—Claude Silva v. Joseph
A-PPEATi from a judgment of the Magistrate’s Court, Colombo South.
M. M. Kumarakulasinghamy for the accused-appellant.
It. Abeysuriya, Crown Counsel, for the Attorney-General.
Cur. adv. vuit.
August 5, 1960. Weerasooriya, J.—
The accused-appellant was charged on four counts with the commissionof offences punishable under the Motor Traffic Act, No. 14 of 1951. Hewas found guilty on all the counts and sentenced to a fine of Rs. 50/-on each of the first and second counts, and a fine of Rs. 10/- on the fourthcount. No separate sentence was imposed in respect of the convictionon the third count, apparently for the reason that the charge under itwas in the nature of an alternative to the charge under the fourth count.
With the conviction and sentence on the first count, under which theaccused was charged with having driven his van No. CV 4119 on thehighway when under the influence of alcohol, I see no reason to interfere,as there is sufficient evidence, which the Magistrate has accepted, tosustain it.
The accused was charged under the second count with having driventhe van on the highway recklessly or in a dangerous manner, under thethird count with having driven the van on the highway when he was notthe holder of a driving licence valid for driving vehicles of the classto which the van belonged, and under the fourth count with havingfailed to carry his driving licence in the motor vehicle or on his personand to produce it for inspection on demand made by a police officer.In regard to the charges under these three counts, Mr. Kumarakulasin-gham raised a point of law that the Magistrate had failed to complywith the peremptory requirements of Section 187 (1) of the CriminalProcedure Code and that the convictions on those charges are therebyvitiated.
The proceedings show that on the 17th July, 1959, the accusedappeared in Court otherwise than on a summons or warrant, and theMagistrate purporting to act in terms of Section 187 (1), recorded theevidence of Mr. Joseph, Sub-Inspector of Police, Mirihana, which is asfollows—
“On 13.7.59 at 9.10 p.m. I stopped and checked private van
CV 4119 proceeding towards Maharagama and found this accused
driving the vehicle smelling of alcohol. He was produced before the
Doctor and the Doctor reported that he was under the influence of• liquor ”,
This evidence clearly relates only to the charge against the accused underthe'first count (of driving the van on the highway when under theinfluence of alcohol) and at the most would have justified the framing of
WEERASOORIYA, J.—Cflaude Silva v. Joseph
191
the charge under that count. But without any further evidence theMagistrate proceeded to frame charges as in the other three counts alsoand record the accused’s plea, which was one of not guilty. Thesecharges are identical with those set out in the report to Court underSection 148 (1) (6) of the Criminal Procedure Code which Mr. Joseph hadfiled on the same date, and from which, it would appear, they weretransferred to the charge sheet without the Magistrate having given hismind to the need for arriving at a decision, as Section 187 (1) of theCriminal Procedure Code requires him to do, whether on the evidencebefore him there was sufficient ground for proceeding against the accusedon those charges.
Section 187 (1) may be dissected into two parts : The first part requiresthe Magistrate to hold the examination directed by Section 151 (2) ;and the second part requires that if on that examination he is of opinionthat there is sufficient ground for proceeding against the accused he shallframe a charge against the accused. The case of Mohideen v. Inspector ofPolice, Pettah1 dealt with the failure of the Magistrate to comply with therequirements of the first part of Section 187 (1). But a failure to complywith the first part of Section 187 (1) would necessarily involve a failureto comply with the requirements of the second part as well. In thatcase a Divisional Bench held that where the accused was brought upbefore the Court otherwise than on a summons or warrant the failureto hold the examination directed by Section 151 (2) is not curable underSection 425 and vitiates the conviction. (The sections referred to aresections of the Criminal Procedure Code.)
In the present case the Magistrate cannot be said to have failed tocomply with the requirements of the first part of Section 187 (1). But,in my opinion, he has failed to comply with the requirements of the secondpart of the section in that, before framing the charges on the second,third and fourth counts of the charge sheet, he manifestly did not considerthe question whether on the evidence before him there was sufficientground for proceeding against the accused. As this is a question essen-tially for the Magistrate, the position would, no doubt, have been differenthad there been even a scintilla of evidence of an admissible naturerelating to those charges on which he might have formed the opinion thatthere was ground for proceeding against the accused on those charges.
The point which arises for decision is, therefore, whether a failure tocomply with the second part of Section 187 (1) is curable under Section425 or whether the convictions on the charges in respect of which thefailure has occurred are thereby vitiated. No previous decision exactlyin point was cited to me at the hearing of the appeal. But it seems tome that if the failure to comply with the requirements of the first partof Section 187 (1) is not curable under Section 425, it would be illogical tohold otherwise in regard to the failure to comply with the require-ments of the second part of the section. The section is so designed as
1 (1957) 59 N. L. R, 217.
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WEEKASO OR1YA, J.—Claude Silva v. Joseph
to ensure that in a summary trial an accused who is brought up otherwisethan on a summons or warrant will not be called upon to face a chargeunless the Magistrate has formed an opinion, based on evidence elicitedas a result of the examination directed under the first part, that there issufficient ground for proceeding against him on that charge. It wouldseem, therefore, that the first part of Section 187 (1) is only complemen-tary of the second and more material part of the section. In my opinionthe failure of the Magistrate to comply with the requirements of thesecond part of the section is, therefore, not curable under Section 425,and the convictions of the accused on the second, third and fourth countsare thereby vitiated.
The view that I have taken appears to be supported by the observa-tions of my Lord the Chief Justice in Mohideen v. Inspector of Police,Pettah {supra) where, however, this particular question did not directlyarise for consideration. Those observations are as follows : “If theprovisions of Section 187 are imperative, as I think they are, it is difficultto resist the conclusion that the requirement that the Magistrate shallascertain whether there is sufficient ground for proceeding against theaccused after the examination directed by Section 151 (2) is alsoimperative *
The conviction of the accused on the first count and the sentencepassed thereunder are affirmed. The convictions of the accused on thesecond, third and fourth counts of the charge sheet are set aside and heis discharged therefrom. I also set aside the sentences passed in respectof the convictions on the second and fourth counts. In all the circum-stances I do not think that this is an appropriate case in which toorder a retrial of the accused on the charges in the second, third andfourth counts.
Convictions on 2nd, 3rd and 4th counts set aside.