100-NLR-NLR-V-23-EBERT-v.-PERERA.pdf
[Pull Bsngds.]
Present: Ennis, De Sampayo, and Schneider JJ.
EBERT v. PERERA.
166—P. C. Colombo, 40,782.
Criminal Procedure Code, ss. 187 and 425—Charge read from report—Isirregularity fatal ?—Appearance^ by accused after summons orwarrant was issued, but before service^—Charge read from summons.
Where proceedings were instituted under section 148 (6) of theCriminal Procedure-Code, 1898, on a written report to the Magis-trate that the accused had committed an offence punishable withmore than three months’ imprisonment, and the accused appearedwithout a summons or warrant being issued, and the Magistrateendorsed on the report “charge reacl from the report.”
Held, that there was an omission to frame a charge, and thatthe irregularity was not covered by section 425.
Da Sampayo J.—An omission in the charge—an omission, forinstance, of the necessary particulars in the charge—may beregarded as an irregularity which may be cured by section 425 ifno prejudice has been thereby occasioned to the accused. Butthe entire absence of a charge, when a Magistrate ought to haveframed one, is not a mere irregularity which may be overlookedunder section 425, but iB a violation of the essential principlegoverning criminal procedure and vitiates a conviction.
Ennis J.—An appearance in Court by an accused person toshow cause against a complaint when a summons or warrant hasbeen issued is an appearance on a summons or warrant, evenalthough the summons has not been served or the warrant executed;and the statement in the summons or warrant could, in such a case,be deemed to be the charge.
T
HIS case reserved for the consideration of three Judges bySchneider J. by the following order
In this case the proceedings in the Police Court were institutedby a printed report made by an Inspector of Excise charging theaccused Appu with having sold an excisable article without a licensein breach of section 17 of the Excise Ordinance, No. 8 of 1912, an
Ebert v.Perera
Soertsz (with him J. 3. Jayawardene), for appellant.—Omissionto frame the charge is fatal to the conviction. Explaining thecharge from the report is not sufficient compliance with section 187of the Criminal Procedure Code, when the offence is punishable withmore than three months or JRs. 60. All the authorities are collectedand examined by the Chief Justice in Coore v. James Appu (supra).
Section 635 of the Indian Criminal Procedure Code provides thata conviction is not to be deemed invalid on the ground that nocharge was framed, and section 537 cures irregularities in thecharge itself. In the old Ceylon Criminal Procedure Code, No. 3 of1883, sections 493 and 494, respectively, provided for these irregu-larities. But in the Criminal Procedure Code, No. 15 of 1898, theold section 493 was left out, and section 494 is retained without anyalteration as section 425. By omitting section 493 the Legislatureintended to enact that failure to frame a charge was fatal to theconviction.
[Be Sampayo J.—Is not section 425 sufficient to cover defectsin the charge as well as the omission of a charge ?]
The section cures only error, omission, or irregularity in the chargeas the express words indicate, but was never meant to cure theomission of a charge. Section 187 makes it imperative on theMagistrate to frame a charge against the accused, except (a) whenhe appears on a warrant or summons, and (b) when the offence ispunishable with less than three months’ imprisonment or a fine ofRs. 50. These exceptions should be strictly construed, as otherwisethe accused may be seriously prejudiced.
[Be Sampayo J.—What is the meaning of the words “ fatal tothe conviction ” ?]—u
1 (1922) 22 N. L. R. 206.2 Section 64a* the Courts Ordinance, 1889.
( 363 )
offence, punishable under section 43 (5) of Ordinance. Onthis report the Magistrate had endorsed: “ Charge read from report.He states he is not guilty.”
It was stated, and the statement is borne out by therecord, that theaccused was not brought before the Court on a summons or warrant.Mr. J. S. Jayawardene argued on appeal on behalf of the accuse?that the omission to frame a charge as required by the provisions ofsection 187 of the Criminal Procedure Code was an irregularity fatalto the conviction, apart from any question of prejudice to the'accused, as the offence disclosed was punishable with more than threemonths’ imprisonment.
As a conflict of decisions has arisen in consequence of the judgmentin the case of Coore v. James Appu,1 and as the point raised is ofmaterial practicable importance, let this case be submitted to theHonourable the Chief Justice for his order.8
( 304 )
1*982. Th® oonviction gahnot stand. It must be Bet aside, and may be— sent b&ok. Under section 187 (1) and the proviso the authoritiesare one way. When the accused surrenders before the executionoi the warrant, absence oi a charge was held to be fatal in thefollowing cases: Shefford v. Anmugam? James AppfUrv. EgmisAppa? Inspector of Police v. Maris? Sanders v. VaMy Tampan? andSilva e. Peiris?
In ..Hendrick v. Pelis Appu6 Shaw J. held that there wasno irregularity when the charge is actually read from the warrant,though it was not executed. This case was followed by Schneider J.in Assert Singho v. Pereira 7 and Mvdiyanse v. AppuAamy et of.8
Charge explained from the report of the peace officer was held tobe fatal to the conviction apart from any question of prejudice to theaccused in Qoonewardene v.Babun? Deonis v. Charles,10 Dunuvitte v.Sinno?1 and de Silva v. Davit Appahamy.1* Cited also SvbrarmniaAiyar v. King Emperor?*
Jansz, CD., for respondent.—Seotion 171 of the Criminal Pro-cedure Code refers to errors in the charge. Therefore errors referredto in section 425 must be construed to have a wider meaning, i.e.,it cures all irregularities in the proceedings relating to the charge.
• [Ennis J.—The words in section 425 are “ subject to the provi-sions hereinbefore contained.”]
These words refer to the provisions of- section 168. The Police.Magistrate by adopting the report in toto without any. alteration has*framed the charge in the exact terms of the report. His copying itover again and reading the same will not make any difference.The proviso applies only to defective reports.
Car. adv. vuli.
July 7,1922. Ennis J.—
This is a reference on a point of law. The case was institutedunder section 148 (5) of the Criminal Procedure Code on a writtenreport to the Magistrate by an Excise inspector that the accusedhad sold an excisable article without a license in breach of section17 of the Excise Ordinance, No. 8 of 1912.
The accused appeared before the Court without a summons orwarrant having been issued.
The learned Magistrate endorsed on the report; “ Charge readfrom report,” and no formal charge was made..
t(1912)lB<a. N. G.1.9 (2916) 3 O. W. B. 363.
7 (1919) 6 G. W. B. 278.9 (1920) 22 N. L. B. 169.
a
4
6
ft
(1916) 6 Bat. N. 0. 27.
9 (1908) 2 8. O. D. 84.
(1914) 1 Or. App.Bep. 66.(1916) 4 Bed. N. C. 63.
(1919) 6 C. W. B. 279.* 2916) 3 B<d. N. G. 60.
(2916) 1 O. W. B. 194.“ (1919) 7 G. W. B. 19.
“ (1901) 26 Mad. 61.
( 866 )
The offence disclosed in the report was onepunishable with more .1928.than three months' imprisonment.EnwbJ
The questions for consideration are whether there has been anomission to frame a ohaige, and, if so, whether it is an irregularity pereracovered by section 425 of the Criminal Procedure Code ? –
The cases on the point were summed up in the case of Court v.
James Appu (supra), but the point was not decided, as it was hotnecessary to decide it in the circumstances of that.case.
Section 187 of the Criminal Procedure Code enacts (1) that wherethe accused is brought before the Court otherwise than on a summonsor a warrant, the Magistrate shall frame a charge; and (2) thatwhere he appears oh a summons or warrant, the statement of theparticulars of the offence contained in the summons* or warrant shallbe deemed to be the charge. It then enacts that the Magistrate shallread such ohaige or statement to the accused. Finally, there is a"proviso that in oases instituted on a written report under section
(1) (5) which discloses an offence punishable with not more thanthree months’ imprisonment or a fine of Be.- 60, it shall be lawfulfor the Magistrate to read such report as a ohaige to the accused.
It is to be observed that in the case of a “ charge ” under sub-seotion (1), and in the case of a “ statement ” ‘under sub-section (2),the charge and statement are each formulated by the Magistrate,and-such formulation takes place after sworn evidence has beentaken, which discloses &primd facie offence, except where the ease isinstituted on a report under section 148 (1) (6), when, by section
(2), it is optional to examine the complainant before issuingprocess.
In the present case the report of the Inspector of Excise is in theform of a ohaige. It is not a full account of what happened, leavingit to the Magistrate to formulate the offence, which the facts, inhis opinion, disclosed; it is a hare statement that the accused didat a certain time and place sell arrack without a license in breach ofsection 17 of the Ordinance No. 8 of 1912. It was argued that theMagistrate had adopted it as his ohaige, and had so complied withthe imperative provision of section 187 (1) to frame a charge. Inmy opinion the existence-and terms of the proviso to section 187render this argument untenable. The proviso says that theMagistrate may “ read the report as a charge,” and may do so only- when the offencejdiseloped is punishable with less than three months’imprisonment or a film of Bs. 60. If " reading the report as acharge ” were the same as “ framing a charge,” it could be done inevery case, and the proviso would be unnecessary. The provisocan, in the oircumstances, only be regarded as a limitation of thepowers of the Magistrate in adopting the work of another. Xtherefore come to the conclusion that in this case no ohaige hasbeen.framed.
( 366 )
1922* The terms of section 425 so far as necessary for consideration in—this case are:—
Bb*ri v.Perera
“ Subject to the provision hereinbefore contained no judg-ment …. shall be reversed or altered on appeal…. on account of any error, omission, or irregu-larity in the …. charge.”
An omission of the charge altogether is not coveredby this section,which relates to omissions “ in” the charge. Moreover, the sectionis expressly made subject to the earlier provisions of the Code, amongwhich is the provision in the proviso to section 187 allowing a reportto be read as a charge within the limits set out by the proviso.
I would add that the formulation of the charge or statement in asummons or warrant on a review of the facts by an independentperson is, in my opinion, a fundamental principle in our criminalprocedure as now laid down in the Code of 1898, and the provisoin section 187 was necessary to make.theslightest departure from itlawful.
I would also add that the case of Hendrick v. Pelts Appu (supra)was apparently one falling within sub-section (2) of section 187.An appearance in Court to show cause against a complaint when a. summons or warrant has been issued is, in my opinion, an appearanceon a summons or warrant, even although the summons has not beenserved or the warrant executed, the issue of the summons orwarrant in such a case being the occasion of the appearance. It thisbe so, the statement in the summons or warrant could, under sub-section (2), be deemed the charged
In the present case the omission to frame a charge is,in my opinion,fatal to the conviction. I would accordingly quash the conviction,and send the case bach for further proceedings.
De Sampayo J.—
I agree with the judgment of my brother Ifowfa on the pointreferred to this Bench for decision, and I wish only to add a few words.
What is the reason for the distinction made in section 187 of theCriminal Procedure Code between a summons and warrant on theone hand and a report under section 148 (1) (ib) on the other ? Thereason does not appear to be that in the one case the process is served{on the accused, who,* therefore, has an opportunity beforehand ofinforming himself accurately of the nature of the charge, whereas hehas no knowledge, before he comes to Court, of what is containedin the report, for a warrant is not served, and the accused doesnot ordinarily see it. The distinction is, I think, based on the factthat it is the Magistrate himself who states the charge in the summonsor warrant, and there is, therefore, no practical object in requiringthe Magistrate to record the charge over again. This explains
( 367 )
and justifies the decision in Hendrick t>. PeKs (Supra), though inthat case the accused came to Court before the wanantwas executed.The same strictness is thought not to be necessary in the case of asmall offence punishable only with three months’ imprisonmentor a fine of Be. 60, and so the Magistrate is allowed in such a case,by the proviso to section 187, to read the report made to him undersection 148 (1) (b) as a charge to the accused, any want of accuracyor particularity in the report bring remedied by the Magistrateamending it if necessary. The fundamental principle is that thereshould be a definite charge which the law imposes on the Magistratethe duty of framing and, in the exceptional ease, of adopting fromthe report.
The other question is whether the absenceof a charge, where one isrequired, is covered by the provisions of section 425 of the CriminalProcedure Code. The old Code of 1883 contained a special section,namely, section 493, expressly providing that the absence of aohaigeshall be no ground for reversing or interfering with a conviction,unless there was a miscarriage of justice. That section is notrepeated in the present Code of 1898. AH that we have now issection 426 corresponding to section 494 of the old Code. In Coore v.James Appu (supra), Bertram C.J. broached the question whether theold section 493 was not dropped, because section 426 was sufficientto cover the case of omission of the charge. But that cannot be,because what section 425 provides is not for the case of omission ofthe charge, but of omission in the charge. That is to say, anomission, for instance, of the necessary particulars in the chargemay be regarded as an irregularity which may be cured by theapplication of section425 if no prejudice has been thereby occasionedto tiie accused. But the .entire absence of a charge, where theMagistrate ought to have framed one, is not a mere irregularitywhich may be overlooked under section 425, but is a violation of theessential principle generally governing criminal procedure andvitiates a conviction.
Schneider J.—
1 have had the advantage of reading the judgment of my brother I
I am unable to add anything to what he says. I agree with his'reasoning and conclusions and the order he directs to be made inregard to the appeal.
1922.
Db Saupavo
J.
Bbertv.
Perera
Set aside.