COORE v. JAMES APPU

064-NLR-NLR-V-22-COORE-v.-JAMES-APPU.pdf


( 206 )
1920.
Present: Bertram C.J.
COORE v. JAMES APPU.
#
581—M. C. Colombo, 3,151.
: Crknin^} Procedure Code, sa. 187 and 425—Failure to frame a charge—Charge in warrant or report—Irregularity—Failure of justice—Keeping a brothel—Living on the earnings of prostitution—Systematically procuring persons for the purpose of illicit inter-course—Ordinance No. 21 of 1919—Ordinance No. 5.of 1889.
The total absence of a written charge ought not to be treated as amere irregularity.
But where there is a charge contained in a warrant or in a report,even if in the one case the accused appears before the warrantis executed, and in the other the offence is one punishable withimprisonment for more than three months or fine over Bs. 50, the.failure to frame a separate written charge ihay amount to nothingmore than a mere irregularity, and it is the duty of the AppealCourt, under section 425 of the Criminal Procedure Code, to inquirewhether in the particular case under consideration the irregularityled to a “ failure of justice.” Anything which has proved pre-judicial to the interests of the accused in the trial should beconsidered to have led to a failure of justice.
Where the facts disclosed the offence of keeping a brothel undersection 1 of Ordinance No. 5 of 1889, the charge in the reportread to the accused was laid under section 9 of the Criminal LawAmendment Ordinance, No. 21 of 1919.
Held, in the circumstances of this case the failure to frame awritten charge by the Magistrate was a fatal irregularity.
The provisions of Ordinance No. 21 of 1919 explained.
14 If a person is charged with living on the earnings of prostitution,it is not right to give general evidence that he does this ; the nameof the alleged person on whose earnings he is said to live must bespecified.
fJ^HE facts appear from the judgment.
J. S. Jayawardene, for appellant.
Cur. adv. wit.
October 13, 1920. Bertram C.J.—
This case raises the question on which there have been conflictingdecisions as to whether, when an accused person is brought before a.Police Court, neither on a summons nor a warrant, but on a reportunder sub-section (6) of section 148 of the Criminal Procedure Code,for an offence punishable with more than three months’ imprison-ment or a fine of Bs. 60 (see section 187 (3)), the fact that the*
( 207 )
Magistrate does not frame a charge as required by seotion 187 (1),1920.
bat reads the oharge from the report, is necessarily a fatal defect notcurable by seotion 425.c.j.
This question is part of a wider question—the effect of failure to Coore-vcomply with the requirements of seotion 187 relative to the framing James Appuof charges. There are numerous decisions of this Court on thesubject. They are not entirely uniform ; but the general effect isto suggest that it is now settled law that any failure to comply withthese requirements is a necessarily fatal defect. All of thesedecisions are decisions of Judges sitting singly. Some day it willno doubt be necessary that the authority of these decisions should 'be considered by the Full Court. As a matter of fact, in the presentcase I have come to the conclusion that the erroneous procedure did,in fact, prejudice the accused. The present case, therefore, is notappropriate for a reference to the Full Court. As, however, I haveinvestigated the history of the subject, and have collected all theauthorities I have been able to discover dealing with the point, itwould be convenient that I should review the whole question. Thisreview, and any conclusion I may provisionally express, must beregarded as subject to fuller consideration when the matter isfinally discussed.
The history of the subject is as follows. Our present Codereplaces the Code of 1883 ; that Code, like the present one, waBmodelled upon the Code at the time in force in India. As thepresent Indian Code on the subject we have to consider does notmaterially depart from its predecessor, it will be convenient thatin speaking of the Indian provisions I should refer to the sections ofthe present Code. Under the Indian system a distinction is drawnbetween “ summons cases ” and “ warrant cases.” A “ warrantcase ” may be considered as a case relating to an offence punishablewith imprisonment for a term exceeding six months (section 4 (u>)).
A “ summons case ” means a case relating to an offence, and notbeing a warrant case (section 4 (v)). When a Magistrate is dealingsummarily with a summons case, there is no occasion for fiim to framea charge at all (section 242). When the accused is broughtbefore him, the particulars of the offence must be stated to theaccused, and he must be asked if he has any cause to show why heshould not be convicted, but it is not necessary to frame a formalcharge. He is tried and either acquitted or convicted without anysuch formal charge. It is different with a warrant case. Here, too,there is no formal charge at the beginning. The Magistrate firsthears all the evidence for the prosecution (section 252); if he findsthat no case is made out, he discharges the accused" (section 253).
If he thinks there is a primd fade case of an offence which he iscompetent to try, then, and then only, he is called upon to frame inwriting a charge against the accused. In the final chapter of theIndian Code the omission to frame a charge is expressly dealt with
( 208 )
1920. (seotion 535). “ No finding or sentenoe is to be deemed invalidBbrtbam merely onthat no charge was framed, unless in the
O.J. opinion of the Court of Appeal or Revision a failure of justice hasCoorev *n ^)een oooasi°ne(l thereby.*’ This express provision is inJames Appu addition to a general clause curing irregularities (section 537), whichcorresponds with section 425 of our own Code.
The Ceylon Code of 1883, though it followed the general lines ofthe Indian Code, did not adopt the distinction between summonsoases and warrant cases, but, like the Indian Code, it did not requirea charge to be framed at the commencement of the trial. Section221 declared that “ when an accused appears or is brought beforethe Police Magistrate, the particulars of the offence of which he isaccused shall be stated to him, and he shall be asked if he has anycause to show why he should not be convicted, but it was notnecessary to frame a formal charge.” It was only if a primd faciecase was made out that the Magistrate was required to “ frame in.writing ” a charge against the accused (section 224). This chargewas then to be read and explained to the accused (section 225). TheIndian section providing that a finding or sentence should not beinvalid merely on the ground that no charge was framed unlessthere was an actual miscarriage of justice was.retained (section 493),as well as the general section curing irregularities (section 494).
In 1890 a change of some importance was made. By OrdinanceNo. 22 of that year an entire new chapter was substituted forchapter XIX. of the Code, in which the provisions above discussedoccur. The provision requiring the Magistrate to frame a formalcharge, if he thought that a primd fade case was made out, disappears.The only express provision as to the framing of a charge which isretained is section 226. This authorizes the Magistrate to convictan accused of any offence which he appears to have committed,whatever may be the nature of the complaint or information, butrequires him before* convicting an accused as aforesaid to frame, acharge in writing./ It was thought at-one time, and was so held intwo cases, that this meant that it was only necessary to frame acharge when the Magistrate convicted of an offence which did notexpressly appear in the complaint. This question was consideredin the Full Court case of Tissera v. Foster} The three Judges,however, though in that case the conviction was set aside, expressedthree different views. Burnside C.J. thought that a charge should,-be framed in every case ; Clarence J., if I rightly understand him,though^ charge should be framed in all cases where a failure toframe one would occasion a failure of justice, and in particular in anycase where the Magistrate convicts of an offence^iot included in thecomplaint; Dias J. held that a charge need only be framed in thatlast particular case. Burnside C.J. in giving judgment observed :“ This Court is invested with the power to excuse the non-framing
1 (1891) 9 S. <7. C. 173.
( 209 )
of a oharge whom we may be of opinion that no miscarriage ofjustice has been occasioned thereby.” TMb was the position beforeour present Code was passed into law.
By seotion 187 our present Code provides that before any summarytrial takes place a formal oharge must be framed. To this them amtwo exceptions: (a) Where the aooused appears on summons orwarrant, the statement of the particulars of the offence contained in<the summons or warrant is deemed to be the oharge; (6) where theaccused appears upon a report under seotion 148 (6), and where theoffence is punishable with not more than three months’ imprison-ment or a fine of Bs. 60, the report may be treated as the oharge.
In all oases the oharge or its equivalent so authorized must beformally mad to the accused. At the same time the old section 493,whioh declared that the omission to frame a oharge should not be fatalto a finding or sentence unless a failure of justice had been occasionedthereby, was struck out. The general section curing irregularitiesremains. (See our present section 425.) An important point to beconsidered in the final determination of the question now underdiscussion will be whether in thus striking out the old seotion 493 ata time when it expressly required a formal oharge to be framed, theLegislature intended to declare that the failure to frame a chargewhere a charge is required should be a fatal defect, or whether, onthe other hand, the Legislature did not consider that the terms ofsection 425 were sufficiently wide to cure defeots in all suoh cases.
I will now proceed to consider the reported authorities. So faras I have been able to oolleot them, they are sixteen in number.There are also a certain number of unreported oases. They fallunder three heads :—
(а)Gases of omission to frame a oharge simplioiter.
(б)Cases where the accused surrendered before the execution ofthe warrant and consequently did not appear on the warrant, butwhere the magistrate, instead of framing a oharge, read to him thecharge from the warrant.
(e) Gases in whioh the Magistrate, read the charge from a report,notwithstanding the faot that the punishment for the offence wasmore than three months’ imprisonment or a fine of Bs. 50.
I will consider these groups seriatim.
Failure to Frame a Charge Simplioiter.—These cases are (1)Mendis v. Fernando1; (2) Silva v. Aberan2; (3) Ally v. Maracair 8 ;(4) Aratchy of Angamana v. Artmogam 4 ; and (5) Qunewardene v.Packeer Lebbe 8
The first case, Mendis v. Fernando,* was a decision of Browne J.In that case the aVcused came before the Court “ somehow or other.”The note on the record was : “ Charge under seotion 315 explained
1 (1900) 4 N. L. A. 104.* (1900) 2 Weer. 3. O. D. 63.
* (1906) 1 Item. 42.* (1911) 6 L. L. B. 24.
* (1911) 16 N. L. R. 1S3.
1920.
BZBCBAH
C.J.
Ooore v.James Appu
19
( 210 )
1920. (section 187 (2)).” The case was obviously not within section 187
. Browne J. observed: “ The purport of the provisions is to
J.show that the acoused was apprised by the statement in either the
Chore vsummons or warrant served on him, or the written charge read to
James Appu him, of the precise accusation against him. This not having beendone, the proceedings are entirely irregular, and I. quash all sub-•eequent to those of March 21, and remit them to be proceeded within due course.” It will be observed that Browne J. merely declaredthe proceedings irregular. He did not say that such a defect wasnecessarily fatal in all cases. The headnote is not warranted by theprecise terms of his judgment. In Silva v. Aberan1 Pereira J. heldthat the omission to frame a charge was an irregularity, but notnecessarily a fatal defect. He found in the record something whichwas in all respects “ tantamount to a formal charge ” ; he, therefore,considered the irregularity cured under section 425. In Ally v.Maracair,B Hutchinson C.J. simply said : “ In a case of thiB kind,
I am afraid that it is a fatal objection.” In Aratchy of Angamana v.Arumogam,a Wood Benton J. made the first emphatic statementof a principle, which has subsequently been followed. He said :“ There are numerous decisions, both Indian and local, whioh showthat the absence of a charge altogether in cases in which the lawrequires that one should be framed is a fatal irregularity. Thosedecisions are binding upon me.” Wood Benton J. here repeatedwhat he had said in a previous case of the year 1908—Goonewardenev. Babun (infra)—which I will discuss under another head. Qnne-wardene v. Packeer Lebbe 4 is a third decision by the same Judgeand in the same year (1911). Here he observed: “ A formalcharge is necessary, and its absence in accordance with well-knownand recognized decisions will be fatal to the proceedings.” It isunfortunately impossible to say what were the “ numerous decisions,both Indian and local,” which Wood Benton J. referred to inAratchy of Angamana v. Arumogam? and which he consideredbinding on him, or the “ well-known and recognized decisions,”which he referred to in Gunewardene v. Packeer Lebbe 4 With regardto the “ numerous local decisions,” the only case on this point upto that date which I have been able to find are the three abovementioned, one of which is to the contrary effect. With regard tothe Indian decisions, I can find no Indian decisions to this effect.The only one on the point which I have been able to find, Empressof India v. Gurdu? is the other way.
Cases of Surrender before Execution of Warrant.—These are(1) Shejford v. Arumogam ®; (2) Sanders v. Vally tampan7; (3)Hendrick v. Pelis Appu8; (4) James Appu v. Egonis Appu *;
1 (1905)1 Leem. 42.*(1880) 3 AH. 129.
* (1909)2 Weer. S. 0. D. 63.•(1912) 1 Bid. N. C. 1.
3 (1911)6 L. L. R. 24.’(1914) 1 Gooray Or. App. Rep. 56.
1 (1911)15 N. L. B. 183.•(1915) 1 C. W. R. 194.
• (1916) 3 C. W. B. 363.
( 211 )
Inspector of Police v. Maris1(6) Silva v. Peiries 1 2; (7) AssenSingho v. Perera 3 ; and (8) Mndiyanse v. Appuhamy et al *
Three of these cases treat the defect as a curable, defeot, theremainder of them treat it as fatal, but without giving reasons.Ennis J. in Shejford v. Arumogam8 said: “On the authority otmany cases before the Supreme Court, this alone is fatal to the case.”Pereira J. in Sanders v. VaUy Tampan 6 considers he is bound byGunewardene v. Packeer Lebbe? De Sampayo J. in James Appn v.Egonis Appn8 quashes the conviotion, “ following the deoisionsof this Court in previous cases.” His decisions in Inspector ofPolice v. Elaris1 and Silva v. Peiriesa prooeed upon the sameground, namely, previous authorities. In the three oases which arein the other direction, in Hendrick v. Pdis Appn9 Shaw J. dis-cusses the principles of the matter. He considers that there was noobject in the Magistrate going through the formality of copying outthe charge from the warrant before reading it to the accused, andnotes that in two previous cases under this head (one unreported)it did not appear that the warrant was actually read to theaccused.
Schneider J. in Assen Singho v. Perera 3 and in the recent case,Mudiyanse v. Appuhamy et al.* follows the decision of Shaw J.in Hendrick v. Pdis Appn.9 So far as these two groups of casesare concerned, therefore, it will be seen that there is no discus-sion of principles. There is merely a reference to previous cases,in which also there is no discussion of principles, and which aresaid to be based upon yet earlier cases, which I have not so farbeen able to discover.
Gases of Charge explained from the Peace Officer’s Report.—These are (1) Ooonewardene v. Babun10 ;. (2) Deonis v. Charles11;
Dunuwille v. Sinno18 ; (4) De Silva v. Davit Appu.13 InOoonewardene v. Babun10 Wood Renton J. followed the decision ofBrowne J. in Mendis v. Fernando, which he accepts as decidingthat “ any irregularity in the proceedings under section 187 shouldbe held fatal to a conviction.” In Deonis v. Charles11 the samelearned Judge said: “ Numerous judgments of this Court, not tospeak of a decision of the Privy Council on this point, make itimpossible for me to hold that the omission to frame a charge evenin cases in which it has caused no prejudice to the acoused is otherthan fatal.” In this judgment of Wood Renton J. there is a passageof some importance. He explains the principle of the requirementthat in cases founded on police reports the Magistrate should himself
1 (1916) 6 Bat. N. 0.27.
^ (1919) 6 O. W. R. 279.
3 (1919) 6 C. W. R. 278.
(1920) 22 N. L. B. 169.
5 (1912) 1 Bed N. O. 1.
(1914) 1 Oooray Or. App. Rep. 56.
13 (1919) 7 O.
» (1911) 15 N. L. R. 183.
. 3 * 5 * * (1916) 3 O. W. R. 363.
• (1915) 1 O. W. R. 194.w (1908) 1 Weer. S. O. D. 84.11 (1916) 4 Bat. N. O. 53.
13 (1916) 3 Bal. N. O. 60.
W. R. 19.
1920.
Bbbkbam
C.J.
Ooortv.James Appu
( 212 )
1920.
Bbbx^u
C.J.
Ooort uJanu* Appu
frame a charge, and that where such reports are formulated as thefoundation of criminal proceedings, the Police Magistrate shouldexercise his own discretion in the matter, and should decide whatthe formal charge should be after the examination directed bysection -149 (a) of the Criminal Procedure Code. I have not beenable to find the decision of the Privy Council referred to by WoodBenton J. in this judgment. Possibly it is the decision discussedbelow. In DunuwiUe v. Sinno,1 Wood Benton J. said with regardto the failure of the Magistrate in such a case to frame a charge:“ It is unnecessary to give authority for the proposition that hisfailure to do so is fatal to the convictions and the sentences.” InDe Silva v. Davit Appu,2 Schneider J. in a similar case said:“ The omissions to frame a charge is a fatal irregularity, apart fromany question of prejudice caused to the accused, as pointed out inthe case of Deonis v. Charles3 and other cases,”
It will thus be seen that here also, apart from the very importantobservation of Wood Benton C.J. above quoted, the decisions donot proceed upon reasoning from principles, but upon previousauthorities, the principles of which have yet to be defined.
This completes the review of the authorities. It is most un-fortunate that, with the exception above noted, it is not possible todiscover from these authorities on what principles they are based,as they all follow each other without explanation. It is necessary,therefore, to examine afresh the principles applicable to all thesegroups of cases.
I will take first the decisions under head (a). The principle .ofthese decisions, though not explained, is not hard to conjecture.They are no doubt based upon the decision of the Privy Council inSubramania Ayyar v. King Emperor,A where the Committee appliedthe principle laid down by the House of Lords in the English caseof Smurlhwaite v. Hannay,6 and repudiated the reasoning of SirFrancis Maclea*n C.J. in In the Matter of Abdul Rahaman,6
According to this decision, I take it that our customary phrase“ necessarily fatal irregularity ” is hardly correct. The realquestion is whether the defect is such as can be described as an“ irregularity ” at all. Nor is it correct to put it, as I have oftenheard it put, that such and such a defect is not an “ irregularity,”but an “ illegality.” All departures from the law are “.illegalities,”but there are some departures of so serious and fundamentala character that they cannot be described by the mild term“ irregularity.”
In Subramania Ayyar v. King Emperor 4 the departure from thelaw was of such a character that it was thought to affect the wholecourse of the trial and to change its very nature. This is, no doubt,
1 (1915) 3 Bed. N. C. 50.
(1W9) 7 a W. B. 19.
<2915) 4 Bed. N. O. 53.
4 (1901) 25 Mad. 61.4 (1894) A. C. 494.
4 (1900) 27 Cat. 839.
( 213 )
not the only ground on which a defect must be treated as fatal. Butit is probable that the series of cases in our own Courts proceededupon this same basis. The Legislature, deliberately departingfrom the previous practice, had declared that in every summarytrial, when once the Court has decided to undertake it, there shallbe from the commencement a definite written charge, which shouldbe read to the accused, specifying precisely what he has to meet.This charge may be the subject of reference at any point in the trial,and must be the basis of any ultimate consideration of the case bythe Court of Appeal. Such a provision may well be regarded as ofso fundamental and all-pervading a character, that its non-observ-ance ought not to be treated as a mere irregularity. No doubtthere may be cases in which the facts may be so simple, the issuesso plain, and the charge so inevitable that it cannot make thesmallest difference to the accused whether a written chargo is read tohim or not. Nevertheless, it is easy to see that some provisionsmay in the intention of the Legislature be of the very essence of theproceedings, while others may be in the nature of formalities. Theexistence of a deliberately framed written charge is obviously acondition which may well be so regarded, whatever the circum-stances of the particular case.
The Iildian cases which declare such a defect to be curable are notnecessarily relevant. In India the written charge is not essentialto the proceedings. It is not universally required, but only incertain cases; and even in these cases, it is not an initial andfundamental step, but only becomes necessary at a certain stageof the proceedings.
Even, however, if we regard this as beingf the principle of thedecisions under head (a) above, and as being now settled law, itseems to me that different considerations may well be held to applyto the two special cases classified under heads (b) and (c). In boththese cases there is a deliberately framed written charge in existenceand it is read to the accused. In the one case it is contained in thewarrant, and in the other in the report. In the first case, but for theaccident of the accused presenting himself before the execution ofthe warrant, the charge would be the basis of the trial. Instead offirst copying the charge out of his notes and then reading it to theaccused, the Magistrate reads it out to the accused direct. Thething is not done precisely as the law directs, but all the essentialswhich the law requires are there. The use of the charge in thewarrant is no doubt permitted by way of exception, and the cir-cumstances in which it exists are not within the precise limits of theexception, but they are within its general intention. So also asregards a charge read from a report. The Code allows this incertain cases. When the possible punishment is comparativelyslight, it is content that the Court should use a charge formulatedby some authority other than itself. When the possible punishment
1920.
Bertram
C.J.
Ooore v.Jamea Appu
( 2-14 )
1920.
Hhbxbam
C.J.
Ooorev.Jamet Ajrpti
exceeds the prescribed limits, it requires the Court to bring its ownmind to bear, and to exercise its own discretion upon the framingof the charge. In some cases this may be of real importance, butthere may be cases in which it is of no importance at all. Theremay in the circumstances be only one possible charge of the simplestnature, and whatever mental application the Court brought to bearupon the subject, it might not be reasonably possible to frameanother. The same may no doubt be said of the absence of a chargealtogether, but I think that every one will realize that a distinctionmay reasonably be drawn between the two cases. It is one thingto ignore a rule altogether; it is another thing to overstep the limitsof an exception. When there is a written charge in existence,which it is open to the Court in its discretion to adopt, and when thecircumstances are such that the Court will inevitably adopt it, I amnot at present convinced that it is anything more than an irregu-larity to read this to the accused without writing it down, instead offirst writing it down and then reading it.
The case under my consideration belongs to the latter category,class (c), and, as at present advised, I think that in such a case thedefect is a mere irregularity, and that it is the duty of the Court-,under section 425, to inquire whether in the particular case underconsideration the irregularity led to a “ failure of justice.”'
The expression “ failure of justice ” has not so far been fullydiscussed, but it is generally accepted that anything which hasproved prejudicial to the interests of the accused in the trial shouldbe considered to’have led to a failure of justice. In thisparticularcase, I think that the accused was prejudiced by the Magistratereading the charges from the report, and not exercising his discretionas to the appropriate charge to be framed. The accused was chargedunder section 9 of the Criminal Law Amendment Ordinance, No. 21of 1919, (a) with living on the earnings of prostitution ; and
with systematically procuring persons for the purpose of illicitintercourse. The facts on which the charges were based were thatthe police, who had been watching the accused’s premises, hadobserved that they were the resort of women and “ passengers,”that on July 16,1920, they raided the premises on the plea that theywere “ passengers,” found inside two women and some sea-faring“ passengers,” who had obviously come to the premises for thepurpose of illicit intercourse, and other “ passengers ” waitingoutside with rickshaws. The accused on the demand of the policerefunded to one of the “ passengers ” certain sums already paidhim. If the Magistrate had himself exercised his discretion, hewould not have framed a charge under this section, but would havesimply charged the accused with keeping a brothel, under section 1of Ordinance No. 5 of 1889. The result was that the accused,instead of having to meet this plain and familiar charge, had tomeet two charges of a special nature under a provision which was
( 215 )
not designed to apply to oases of this sort. Apparently, owing to amisconception of the Magistrate as to the nature of the evidenceadmissible under the new section, general evidence was given thatthe house was the resort of people known to the police to be prosti-tutes, that the accused lived on the earnings of prostitution. Thesecharges and this evidence can hardly fail to have embarrassed him,though, even apart from this evidence, there was ample evidenceupon which he could have been convicted on the simpler charge.
Speaking generally, the Ordinance and the Ordinances which itamends do not penalize illicit sexual intercourse, except where theact takes place under circumstances which are a public scandal, oran outrageous offence to individual rights, or where it takes placewith a girl under the prescribed age. Similarly, the procurementof women for an act of sexual intercourse is not punishable, exceptin the case of a woman under twenty years of age (see section 6).But what the Ordinance does specially penalize is the making aliving out of the corruption and degradation of others. It does thisin three ways :—
(а)It enhances the penalties for brothel-keeping (section 4);
(б)It punishes persons who live on the earnings of prostitution
(section 9 (1) (a)); and
(c) It further punishes persons who sysetmatically procurepersons of whatever age for the purpose of illicit intercourse.
With regard to (6), the person here aimed at is the type ofcharacter known in Europe as the “ bully,” that is to say,.a person. who has a woman under his control, and who by the use of hisinfluence or authority compels or induces her to offer herself forprostitution, and lives wholly or in part on earnings so realized. Ido not say that this provision might not in appropriate circumstancesbe applied to a brothel-keeper, but it is not intended for that case.Every brothel-keeper, though he may derive profit indirectly fromprostitutes, does not necessarily live on the earnings of prostitution.The inmates of the brothel may be merely lodgers of the brothel*keeper. There may be an advantage in the application of thisprovision to brothel-keepers in appropriate cases, inasmuch as underparagraph (ii.) the Court may, when the man is convicted on anindictment, order him to be whipped. Speaking generally, however,the provision is not intended for these cases. Similarly, sub-section
(6) of section 9 is not intended for brothel-keepers. While the lawordinarily does not punish procurers or procuresses of women overtwenty years of age, it does by this section punish them if they makea business of.it. Here the offence is independent" of the occupationof any particular premises. With regard to brothel-keeping, theoccupation of the premises is the essence of the offence..
The appropriate section, therefore, for the charge is section 1 ofOrdinance No. 5 of 1889. But under whatever section a charge is
1920.
CUT.
Coorev.James Appu
( 216 )
1920, laid., the ordinary principles of evidence must be observed. If aBbbtbam P618011 **with living on the earnings of prostitution, it is
j. not right to give* general evidence that he does this ; the name of
the alleged person on whose earnings he is said to live must be
J^TappuPolice officers must not be allowed to state in the
witness box, except after conviction, that such and such a personlives on the earnings of prostitution, or associates with prostitutes,or that they know such and such a woman to be a prostitute. Thisis only admissible where the law specially allows it. If it becomesmaterial for the Court to know whether a particular woman is aprostitute, or whether the women frequenting particular, places areprostitutes, the police officer should not merely state his opinion,but should also state the circumstances within his own knowledgeon which it is based, as, for example, that he has seen this or thatwoman walking the streets, or that he has warned her for so doing,or that she has been oonvioted of, or been connected with, an offencewhioh involves prostitution. Some of the evident, therefore, givenin this c % was inadmissible. That the premises were watched bythe polio- A were seen to be the resort of women and passengers,and that ;~ information so obtained a raid was made, is ad-
missible to negative the possibility that the men and women foundon the premises on the occasion of the raid were there merely inconsequence of a casual arrangement for which the occupier of thepremises was not responsible. Similarly, evidence that a previouswarning was addressed 'to him is admissible for the same reason.The general evidence of his habits or of the habits of women said tohave resorted to his house was not admissible.
The case will accordingly go back f or new trial under the sectionI have indicated, and, as it would not be convenient that theMunicipal Magistrate should himself try the case, I direct that theprosecution be transferred to the Colombo Police Court.
Sent back,