KEUNEMAN J.—Grenier v. Edwin Perera.
1941Present: Keuneman J.
GRENIER v. EDWIN PERERA.M.C. Matara, 35,922.
Complainant—Report by Police Officer—Person giving information to PoliceOfficer may be regarded as complainant—Applicant for revision—Criminal Procedure Code, s. 199.
A person making an oral or written complaint under section 148 (1) (a)or a Police Officer making a report under section 148 (1) (b) may beregarded as a cmplainant within the meaning of section 199 of theCriminal Procedure Code.
A person giving information to a Police Officer may also be includedin the category.
PPLICATION to revise an order of acquittal by the Magistrate ofMatara.
H. V. Perera, K.C. (with him E. B. Wikremanayahe), for the petitioner.
L. A. Rajapakse, for accused, respondent.
H. W. R. Weerasooriya, C.C., on notice issued.
Cur. adv. vult.
June 5, 1941. Keuneman J.—
In this case the accused, a Police Constable, was charged with causinggrievous hurt with a club to the petitioner. Proceedings in the case wereinstituted on a written report under section 148 (1) (b) by Sub-Inspectorof Police Grenier. On the trial date Assistant Superintendent of PoliceLeembruggen with Sub-Inspector Grenier appeared for the prosecution.The accused was also represented.
Mr. Gunasekera with Mr. Amarasuriya appeared for the petitioneron that occasion, and desired to lead evidence for the prosecution. Thisthe Magistrate did not allow him to do, but gave him permission tosuggest any questions he wished to the Magistrate.
Thereafter, apparently the prosecution was conducted by the AssistantSuperintendent of Police. After trial the accused was acquitted, and noappeal has been taken from this acquittal.
The petitioner, however, being dissatisfied with the conduct and theresult of the case, now moves in revision, praying that the order of theMagistrate be set aside. The objection is taken that the petitioner hasno status to make this application.
Section 199 of the Criminal Procedure Code sets out the persons bywhom the prosecution before the Magistrate may be conducted. Underthis section the Attorney-General, the Solicitor-General, a Crown Counsel,or a pleader generally or specially authorised by the Attorney-Generalare entitled to appear and conduct the prosecution- to the exclusion of allothers. In this case no one of these persons conducted the prosecution.The section goes on to say that in the absence of these persons I have
KEUNEMAN J.—Grenier v. Edwin Perera.
mentioned “ the complainant or any officer of any Government depart-ment …. may appear in person or by pleader to prosecutein any case in which such complainant or Government department.. is interested.”
What is meant by the word “ complainant ” ? In section 3 of theCriminal Procedure Code it is laid down that “ complaint ” means theallegation made orally or in writing to a Magistrate with a view to his takingaction, that some person has committed an offence. Section 148 (1) (a)mentions a “ complaint ” made orally or in writing to a Magistrate.Section 148 (1) (b) does not contain the word “complaint”, but I aminclined to think that the definition in section 3 covers the written reportunder this sub-section also. The important point is that the allegationmade to the Court constitutes the complaint. I am inclined to thinkthat the person making an oral or written complaint under section 148(1) (a), and a Police Officer making a report under section 148 (1) (b) maybe regarded as a complainant.
At the same time, it is possible that the word complainant has a widermeaning, for example in section 127 (1) and (3), and may even includethe person who gives information to a Police Officer or inquirer underChapter XII. I am not certain that it is necessary to give this wideinterpretation to the word “ complainant ” in that section. It issufficient in this case to act on the footing that the person giving suchinformation may be regarded as the complainant. I think the petitionerin this case falls within that category.
I am inclined to think that Sub-Inspector Grenier may be regardedas a complainant in this case. It is also possible that the petitionermay be so regarded.
As far as the Sub-Inspector is concerned, he would in addition beregarded as a “ party ” to the case for the purpose of. appealing undersection 338. (See Nonis v. Appuhamy ; Babi Nona v. Wijeyesinghe *).
As far as the Assistant Superintendent of Police is concerned I thinkhe comes within the words of section 199 “ any officer of any Governmentdepartment …. in any case in which … the Govern-
ment department …. is interested.”
I cannot see that Section 199-gives any preferent right to the complain-ant over the officer of the Government department. I take it that it is amatter for the Magistrate to decide in his discretion who should bepermitted to conduct, the prosecution in a case like the present.
It may be advisable in cases, where the person accused is a PoliceOfficer, for the injured person if he wishes to do so to apply to th£Attorney-General to give the necessary authority to a pleader nominatedby the injured person. The pleader so authorised would have a preferentright to conduct the case. It is necessary in cases such as the present notto leave even the impression that the case has been conducted otherwisethan impartially. But on a careful examination of the circumstancesI am of opinion that in this case it cannot be said that the Magistrateexercised his discretion wrongly or unfairly. I am not unmindful in thisrespect of the observations of the Chief Justice in Kalatunga v. Mudali-hamy”. But it is to be remembered that the defence decided to place1 27 K. L. E. 430.2 29 X. L. R. 43.3 IS C. L. W. 80.
SOERTSZ J.—Thangayagam v. Chelliah.
the name of the Assistant Superintendent of Police on the list of witnesses,after the Magistrate had entrusted the conduct of the case to him, andthe only important evidence elicited by the defence was that none of thewitnesses had stated to the Assistant Superintendent that the accusedput the Cycle on the stand and threw the club.
In my opinion there is no justification in this case for the suggestionthat the Assistant Superintendent was not making any attempt to provethe case for the prosecution. The trial seems to have been conductedproperly, and further Counsel for the petitioner was given the right tosuggest any questions to the Court. In view of the fact that the accusedwas acquitted after proceedings conducted in my opinion fairly andefficiently, I do not think he should undergo the risk of a second trial.
The application is dismissed.
GRENIER v. EDWIN PERERA