THE ATTORNEY-GENERAL AND ANOTHER
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. AND
DR. SHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 104/95.
D.C. KANDY NO. H.C. 15683
JANUARY 13, MARCH 03, 17 AND APRIL 01, 1997.
Criminal Law – Charge Sheet – Magistrate’s duty – Sections 182( 1) and (2) of theCode of Criminal Procedure Act.
Compliance with sections 182(1) and (2) of Code of Criminal Procedure Act isimperative. When an amended plaint is filed, a fresh charge sheetshould be framed and read out to the accused. Failure to do so vitiates theconviction.
APPEAL from the judgment of the High Court (Central Province)
Case referred to:
Abdul Sameem v. The Bribery Commissioner, (1991) 1 Sri L.R. 76.
Mohan Peiris with Ananda Panagoda and Susil Panagoda for appellant.
C. R. de Silva, A.S.G. with Kapila Waidyaratne, S.S.C. and S. Samaranayake, S.C.for respondents.
Cur. adv. vult.
G. P. S. DE SILVA, C. J.
The appellant was charged on three counts before the Magistrate’sCourt. The first charge was under the Offences against PublicProperty Act, No. 12 of 1982. The other two charges were falsificationof accounts which are offences under the Penal Code. After trial, theappellant was convicted of all three charges. He appealed againsthis conviction and sentence to the High Court (Central Province) andhis appeal was dismissed. He has now appealed to this court, withleave obtained from the High Court.
David Perera v. The Attorney-Generaland Another (G. P. S. de Silva, C.J.)
Counsel for the appellant, Mr. Mohan Peiris, raised a preliminaryissue of law, which in his submission, vitiates the conviction.The proceedings were instituted by the Officer-in-Charge. SpecialCrimes Investigation Branch of Kandy on 20.1.93 by filing a report interms of section 136(1) (b) of the Code of Criminal Procedure Act.On the same day a single charge was framed by the Magistrate andthe plea of “not guilty” was recorded. Thereafter the prosecutionmoved to amend “the plaint” and a document described as the“amended plaint” was filed on 12.5.93. This document appears atpage 4 of the record. It is to be noted that the original report to courtfiled on 20.1.93 contained only one charge, while the “amendedplaint" filed on 02.5.93 contained three charges. The additionalcharges in the “amended plaint” were under Section 467 of thePenal Code.
On a perusal of the record it would appear that the Magistrate hasfailed to frame the charges, as he was required to do in termsof section 182(1) of the Code of Criminal Procedure Act. TheMagistrate appears to have adopted the “amended plaint” filedon 12.5.93 as the “charge”. Thus he has failed to comply with theprovisions of section 182(1) and (2) of the Code of CriminalProcedure Act. The fact that there is no separate charge sheet apartfrom the “amended plaint” at page 4 of the record tends to supportthe contention that the appellant was "charged” from the amendedplaint.
It was the submission of Mr. C. R de Silva, Additional SolicitorGeneral, that the document which is described as the “amendedplaint” at page 4 of the record, is in truth the “charge sheet", and thatthe label (“amended plaint”) given to the document should bedisregarded. I find myself unable to accept this submission. Thejournal entries show that after the original report to court was filed interms of section 136(1) (b) of the Code of Criminal Procedure Act on20.1.93, the prosecution moved to “amend the plaint” and it ispursuant to that application that the document described as the“amended plaint” at page 4 of the record was filed. I find it difficult toresist the conclusion that what the Magistrate has in fact done is to
read the charges to the appellant from the “amended plaint", aprocedure which is not permitted by law. The Magistrate has failed tocomply with the imperative provisions of section 182(1) and (2) of theCode of Criminal Procedure Act and this vitiates the conviction.(Abdul Sameem v. The Bribery Commissionerm).
There remains the question whether a re-trial should be ordered.Although the alleged offences were committed almost 7 years ago,yet on a consideration of the evidence on record, I am of the viewthat this is a fit and proper case in which a re-trial should be ordered.While setting aside the conviction and sentence imposed on theappellant, I make order directing a fresh trial. The Magistrate isfurther directed to hear and conclude this case very early.
RAMANATHAN, J. – I agree.
DR. SHIRANI BANDARANAYAKE, J. -1 agree.Conviction set a sideCase sent back for re-trial.