096-NLR-NLR-V-48-DIAS-Appellant.-and-NADHARAJA-S.-I.-POLICE-Respondent.pdf
DIAS J.—Dias v. Nadharaja
301
1947Present: Dias J.
DIAS, Appellant, and NADHARAJ A (S. I. Police), Respondent.
349—M. C. Panadure, 44J9B6
Criminal Procedure—Charge—Proceedings against accused on police report—Voluntary appearance of accused on police bail—Charge framed withoutprior examination under s. 151 of Criminal Procedure Code—Procedurenot defective—Criminal Procedure Code, ss. 148 (1) (b), 551, 187 (I).Proceedings were initiated against the accused under section 148 (1) (b)of the Criminal Procedure Code. The accused, who was on police ballunder section 127, voluntarily appeared before a summons or warrantwas issued. The Magistrate thereupon framed a charge and, aftertaking the plea, proceeded with the trial.
Held, (L) that the procedure w.as lawful. Cader ». Karunaratne(1943) 45 N. L. R. 23, followed.
(ii.) Section 151 (1) of the Criminal Procedure Code has no applicationwhen an accused voluntarily appears before the Court without process.
^ PPEAL against a conviction from the Magistrate’s Court, Panadure.
H. W. Jayewardene, for the accused, appellant.
J.G. T. Weeraratne, C.C. for the Attorney-General.
Cur. adv. vult.
June 27, 1947. Dias J.—
I see no reason to interfere with the Magistrate’s findings of fact.
The appeal, however, is pressed on a point of law. It is contendedthat although the Magistrate framed a charge against the appellant interms of section 187 (1) of the Criminal Procedure Code, he erred in doingso without first examining on oath the complainant or some materialwitness or witnesses in terms of proviso (ii) to section 151, and that,therefore, the conviction is vitiated.
Various authorities have been cited to show that the framing of thecharge in a summary trial is beset with so many pitfalls that the Magistrateis as likely to commit some blunder, as to steer his way safely through thedangers which exist.
The material facts are these: The appellant had been enlarged on“ police bail ” under section 127 of the Criminal Procedure Code. Thebail bond probably was conditioned on the appellant appearing beforethe Magistrate on December 17, 1946. The police filed a plaint in termsof section 148 (1) (b), and on that day the appellant was present in Courtin terms of his bail bond without process having been issued on him.The Magistrate then drafted the charge himself. To this the appellantpleaded “ Not guilty ”. Thereafter the trial proceeded.
Before the authorities are examined the relevant sections of theCriminal Procedure Code should be considered. The proceedings wereinitiated under section 148 (1) (b). This brought into operation theprovisions of section 151 (1)—that is to say, when the accused is “not incustody”, and is not physically before the Court, the Magistrate willissue either a summons or a warrant in order to secure his attendance.
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DIAS J.—Dias v. Nadharaja.
Obviously, this is unnecessary when the accused is present in Courteither on remand as was the case in Thomas v. Inspector of Police,Kottawa1, or voluntarily appears before the process is served on him, orwhen he is on police bail and voluntarily comes forward as was the casehere. For the same reason, the proviso (ii) to section 151 (1) can have noapplication either, because it merely says that in cases initiated undersection 148 (1) (a) or (b) the Magistrate shall, before issuing a warrant,and may, before issuing a summons, examine on oath the complainant orsome material witness or witnesses. Where the issue of a summons or awarrant is rendered unnecessary—as in the present case—by reason ofthe fact that the accused is already physically before the Court, there isno need to invoke the provisions of proviso (ii) to section 151 (1). Wherethe accused is brought before the Magistrate in custody without process,it is section 148 (1) (d) and not section 148 (1) (b) that applies. In suchcases section 151 (2) provid.es that it is the Magistrate’s duty forthwithto examine on oath the person who has brought the accused before theCourt and any other person who may be present in Court able to speakto the facts of the case. These provisions can have no application to thepresent case. In my opinion, section 151 has no application whateverto a case where the accused voluntarily appears before the Court withoutprocess.
The next section which comes into action is section 187 which relatesto the framing of the charge in a summary trial. Two situations areenvisaged : (a) where the accused is before the Court otherwise than on asummons or warrant, and (b) where the accused is present on summonsor warrant. In the former case the Magistrate shall “ after the examina-tion directed by section 151 (2), if he is of opinion that there is sufficientground for proceeding against the accused, frame a charge against theaccused ”. With the object of saving time, the proviso to section 187says that where the prosecution commenced on a written report undersection 148 (1) (b) and the offence disclosed, is punishable with not morethan three months’ imprisonment or a fine of Rs. 50, the Magistratemay, without drafting a charge himself, read such report as a chargeto the accused and call upon him to plead. This proviso has no applicationto the present case, because the Magistrate did not act under it. Hedrafted and framed a charge himself.
There was no need for the Magistrate to hold the examination directedby section 151 (2), because that section only applied when the accused isbrought before the Court in custody without process.
It is to be noted that section 187 (1) was amended by section 12 ofOrdinance, No. 13 of 1938, which substituted the words “ by section 151(2), if he is of opinion that there is sufficient ground for proceeding againstthe accused” for the words “by section 149 (4), if he does not dischargethe accused under section 151 (1).”. Having regard to the previouswording of section 187 (1) and the words of the amendment, it seemsthat the words “if he is of opinion that there is sufficient ground forproceeding against the accused ” refer to the examination under section151 (2). I do not think the Legislature intended to say that in all casesbefore the Magistrate frames a charge in a summary trial, he must be of
1 [1945) 47 N. L- Jt 42.
DIAS J.—Dias v. Nadharaja.
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opinion that there are sufficient grounds for proceeding against theaccused. As I have pointed out, when the accused appears before theCourt voluntarily and without process, section 151 has no applicationwhen the offence alleged against him is one summarily triable. Theinstances where the Magistrate must examine witnesses before framing acharge are provided for in the earlier sections, e.g., section 150 (indictableoffences only), section 151 (1) proviso (ii) (in order to issue process on theaccused), section 151 (2) (where the accused is brought before the Courtin custody without process) .
Section 187 (1) applies to cases where the accused is present before theCourt “ otherwise than on a summons or warrant ”, while section 187 (2)deals with the case where the accused appears before the Court on process.Obviously, the present case falls under section 187 (1) for he did notcome before the Court on a summons or warrant. There was nonecessity to hold any preliminary examination and the Magistratedrafted a charge to which the appellant pleaded “ Not guilty ”. Thereafterthe trial proceeded. Nevertheless, it is contended that the procedure isdefective.
The case of Cader v. Karunaratne1 is exactly in point. The proceedingswere initiated under section 148 (1)(b), and the accused appeared,
probably on police bail, before process was issued on him. The Magistratewithout holding any preliminary examination framed a charge. It washeld that the procedure was in order. I see no reason why I should notfollow that decision.
I have carefully considered the other authorities which were citedat the argument. Each of these cases depends on its peculiar facts.For example in Cader v. Karunaratne1 the case of Varghese v. Perera=was cited. As was pointed out by de Kretser J. Varghese v. Perera'dealt with an entirely different state of facts. There, the accusedhad been brought up in custody, i.e., in terms of section 148 (1) (d>), and,therefore, under section 151 (2) it was the duty of the Magistrate to haveexamined on oath the person who brought the accused before the Courtand any other person who may be present in Court able to speak to thefacts of the case. That decision was, therefore, irrelevant in regard tothe question which arose in Cader v. Karunaratne1 and to thequestion which I have to decide. I may observe in passing that- Varghese
Perera* appears to be in conflict with Assen v. Maradasta Police",but it is unnecessary to go into that question here. In Tennekoon v.Dahanayaka ‘ the facts are dissimilar to those which arise here. Theplaint had been filed under section 148 (1) (b) and summons was issuedon the accused, who appeared in Court before the process was served onhim. The Magistrate without proceeding under section 187 (1) to framea charge, acted under the proviso to section 187 and explained the chargefrom the unserved summons. It was held that this was not a fatalirregularity. That case has no application whatever to the present case.In Hendrick v. Pelis Appu * a warrant had been issued, for the arrest ofthe accused who could not be found and was proclaimed. He thenappeared before the warrant had been executed, and the Magistrate
1 {1943) 45 N. L. R. 23.* (1944) 45 N. L. R. 263.
* (1942) 43 N. L. R. 564.* (1938) 40 N. L. R. 36.
» (1915) 1 C. W. R. 191.
48/26
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NAGALINGAM A.J.—Somadasa v. Jehoran.
without framing a specific charge, read it from the unexecuted warrant.It was held that no irregularity was committed. This case was consideredin the leading three Judge decision of Ebert v. Perera Ennis J. said“I would also add that the case of Hendrick v. Pelis Appu3 was apparentlyone falling within section 187 (2). An appearance in Court to show causeagainst a complaint when a summons or warrant has been issued is,in my opinion, an appearance on a summons or warrant, even althoughthe summons has not been served or the warrant executed, the issue ofthe summons or warrant in such a case being the occasion of the appear-ance. If this be so, the statement in the summons or warrant could,under sub-section (2), be deemed the charge.”
In my opinion there has been no irregularity in the Magistrate’sprocedure. I affirm the conviction and dismiss the appeal.
Appeal dismissed.