GODAGE AND OTHERSv.
OFFICER-IN-CHARGE:, POLICE STATION, KAHAWATTE
COURT OF APPEALISMAIL, J.
A. 324 – 328/80;
02 MAY 1991
Criminal Procedure – Duty of Magistrate to frame charge – Code of CriminalProcedure Act, No. 15 of 1979, Section 182.
It is an imperative duty of the. Magistrate to frame a charge and read it out to theaccused. Failure to do so is fatal to the conviction.
Cases referred to:
Sameen v. The Bribery Commissioner (1991) 1 Sri LR 76.
’ Karunatilleke 'v. O.I.C., Police Station, Aranayake. C.A. 196/83 – M.C.
Mawanella No, 15256 – Minutes of the Court of Appeal 28.6.1998.
APPEAL from qonvictioh by the Magistrate of Pelmadulla.
S. Wijesinghe, P.C. with Nihal Somasirifor accused-appellants.
S. Rajaratnam, S.C. for Attorney-General.
16th January, 1992.
This is an appeal against the conviction and the sentence imposedon each of the accused-appellants in the Magistrate's Court ofBalangoda. Learned President's Counsel for the appellantssubmitted, firstly, that the conviction entered should be quashed asthe learned Magistrate had failed to frame charges against each ofthe accused in compliance with the mandatory provisions of section182 of the Code of Criminal Procedure Act, No. 15 of 1979. BothCounsel then tendered written submissions relating to this preliminarymatter.
It appears from the record that A. X. C. Motha of. the KahawattePolice Station instituted proceedings, in the Magistrate’s Court, on awritten report dated 2.5.1979, in terms- of section 163(1 )(b) ofChapter II of the Administration of Justice Law No. 44 of 1973,alleging the commission, on or about 64..1979, of offences undersections 434, 410 and 369 of the Penal Code by the followingaccused.
Kirimadugoda Durayalage Piyasena .
Kirimadugoda Durayalage Gunapalagand
. 4. Rambanditaladurage Daniel alias Matate.
The Magistrate had made this endorsement on the report, "Issuesummons for 5.6.79". There is no journal entry relating to the issue ofsummons nor is there an indication as to whether the accused werepresent on 5.6.79. But according to the first journal entry of 25.6.79, itappears that the first three., accused were present while the fourth,accused had beep absent.. The Magistrate trad ordered freshsummons on him for 18.9.1979. On this.date allfour accused werepresent. The Magistrate had then.apparently on the application of thepolice to add another accused to the list by way of an amendedplaint, fixed 25.9.79 as the date for this purpose. On 25.9.79, anamended report was filed by an officer of the Kahawatte PoliceStation, in terms of section 136(1)(b) of the Code of CriminalProcedure Act No. 15 of 1979, which had by then come intooperation, alleging that the five accused named therein hadcommitted offences under sections 140, 144, 434/146, 410/146 and369/146 of the Penal Code. The following are the five accusednamed therein.
Kithsiri Dayawansa Sunil Godage
Kirimadugoda Durayalage Piyasena
Kirimadugoda Durayalage Gunapala and •
Ranbanda Taladurage Daniel alias Matara.
The 2nd to the 5th above-named accused were the four accusednamed in the original report filed while the 1 st accused named aboveis an added accused. The journal entry of this date refers to thisamended plaint and states that Kithsiri Dayawansa (1st accused) hasbeen added as an accused. The case was then fixed to be callednext on 2.10.79 on which date it appears that all five accused werepresent. But according to the journal entry of this date the order ofthe accused in the list had been changed. The added accused K. D.Sunil Godage, who was the 1st accused in the list in the amendedplaint and in the previous journal entry was now made the 5thaccused, while the 2nd to the 5th.accused in the previous journalentry were made the 1st to the 4th accused. The following note alsoappears in this journal entry “states (they are) not guilty”. The trialwas then fixed for^O.12.79.
It appears from the record that according to a subsequent journalentry of 19.5.80 and in the journaf entries thereafter, the order of theaccused in the list was corrected ancf brought ifi tine with the order ofthe accused as listed in the amended plaint. But it is to be noted thatthis was not the order of the accused that prevailed on 2.10.79 whenthe endorsement had been made to the effect that the accused hadpleaded not guilty.
It is the submission of the learned Counsel for the accusedappellants that there was a total failure on the part of the learnedMagistrate to comply with the provisions of section 182 of the Code ofCriminal Procedure Act, which read as follows:
182(1). “where the accused is brought or appears before Courtthe Magistrate shall if there is sufficient ground for proceedingagainst the accused, frame a charge against the accused.
(2). The Magistrate shall read such charge to the accused andask him if he has any cause to show why he should not beconvicted.”
He further submitted that no charge had been framed or read outat all either from a charge sheet or on the basis of the plaint (report)or the amended plaint (amended report). There is no charge sheet atall. There are two plaints and the order of the accused in the listaccording to the journal entry of the date ori which the plea appearsto have been recorded does not fit the order of the accused in the listin either of the plaints filed.
Learned State Counsel in reply submitted that a charge sheet isnot an essential requirement of the law,as it now stands while the factthat the plea had been recorded and that the accused participated atthe trial at which they were represented by. Counsel show that theywere aware of the charges that had been levelled against them. Hehas also submitted that although section 182 requiresJthe Magistrateto frame a charge against the accused and readmit to him and askhim if he has any cause to show why he should not be convictedthere is no legal requirement that such matters be recorded.
However, from a perusal of the record it is quite apparent that nocharges have been framed against each of the accused' and readout to them. In Sameen v. • The Bribery Commissioner (1Gunawardena, J. held after a review of the earlier authorities that thefailure to frame a charge as required, under section 182(1) of theCode of Criminal Procedure Act is'a violation of a fundamentalprinciple of criminal procedure and is fatal to the conviction. It is not adefect curable under section 436 of the Code of Criminal ProcedureAct. Learned State Counsel has pointed out that the judgment of thisCourt in G. P. Karunatilleke v. O.I.C., Police Station, Aranayake(2), wasnot considered in Sameen v. The Bribery Commissioner. It was heldon the facts of that case that there was a sufficient compliance withthe provisions of section 182 Code of Criminal Procedure Act. Thisjudgment does not lend support to the submissions on the law madeby the learned State Counsel and are therefore not entitled tosucceed. I am however in respectful agreement with the viewsexpressed by Gunawardena, J. in Sameen v. The BriberyCommissioner and, in the circumstances, I hold that the conviction ofthe accused-appellants entered about eleven years ago cannotstand.
Accordingly the appeal is allowed and I hereby set aside theconviction '^n.tered and the sentence imposed on the accused-appellants.