H. CORNELIS CALDERA, Appellant, and V. D. P. WIJEWARDENE (Ispector of Police), R

045-NLR-NLR-V-65-H.-CORNELIS-CALDERA-Appellant-and-V.-D.-P.-WIJEWARDENE-Ispector-of-Police-R.pdf


210
Odder a v. Wijewardme
Present: Sansoni, J.
H. CORN ELIS CALDERA, Appellant, and V. D. P.
WIJEWARDENE (Inspector of Police), Respondent
S. C. 1077—M. G. Colombo South, 4736/N
■Criminal procedure—Accused produced in Court by police officer without process—Framing of charge—Omission of Court to record evidence of police officer—Js it afatal irregularity ?—Criminal Procedure Code, ss. 148 (1) (b), 151 (2), 152 (3),425—Scope of s. 425.
Where a police officer produces an accused person in custody before Courtwithout process, the omission of Court to record the evidence of the policeofficer before framing a charge against the accused is an irregularity whichcan be cured under section 425 of the Criminal Procedure Code, if the omissionhas not caused prejudice to the accused.
Appeal from a judgment of the Magistrate’s Court, Colombo South.
Colvin JR. de Silva, with Miss Suriya Wicbremasinghe, for th/Accused- Appellant.
T.D. Bandar anayake, Crown Counsel, for the Attorney-General.
Cur. adv. tndt.
SANS ONI, J.—Caldera v. Wijewardene
211
March 2, 1962. Sansoni, J.—
Proceedings in this case appear to have begun with the accused beingproduced in court by a police officer, after investigation had been madeinto a complaint that he had cheated one Albert. He was warned toattend on a later day, hut he was absent on that day and a warrant was“issued for his arrest. He subsequently surrendered, and the Policefiled a report in terms of section 148 (1) (b) of the Criminal ProcedureCode. The offence alleged was that the accused intentionally deceivedAlbert by making him believe that a Bank of Ceylon cheque dated 1stApril, 1960 for Rs. 300 drawn by the accused was a genuine chequeand that there would be funds in the Bank to meet it on presentation,and that the accused thereby dishonestly induced Albert to pay himRs. 300 in cash on the cheque—an offence punishable under section 403of the Penal Code. After evidence had been given by Albert, but notby the police officer who had brought the accused before the court, theMagistrate assumed jurisdiction under section 152 (3) of the Code andcharged the accused who pleaded not guilty.
The evidence led at the trial proved that the accused had an accountat the Bank of Ceylon. The Bank had written to the accused on 10thFebruary, 1960, asking him to close his account on or before 23rdJanuary, I960, in view of the very unsatisfactory manner in which he hadbeen conducting his account. He was also informed that if he failedto close the account voluntarily, the Bank would do so without anyfurther notice on the date mentioned, and would send him a chequefor the balance at credit on that date. The date mentioned in theletter was obviously wrong. The account was in fact closed by theBank on 23rd March, 1960. It cannot, however, be said that the accusedwas aware on 1st April, I960, that his account had been closed.
But there remains the question whether the rest of the evidencewas sufficient to establish the charge. The accused’s account with theBank has been produced, and it shows that on 19th March, 1960, he hadRs. 279.18 to his credit. On 22nd March he was debited with a cheque-for Rs. 279, and there was left a balance of only 18 cents. On 23rdMarch there was a transfer of 18 cents, and there was nothing left to hiscredit. No further entries appear in the account.
The accused in evidence admitted that he issued the cheque forRs. 300 on 1st April to Albert. He did not deny Albert’s evidence thatcash was given in exchange for the cheque. He attacked the Bank’sstatement as an incomplete statement of his account for March, 1960,but the Bank clerk who gave evidence was not cross-examined on thispoint. Obviously nothing was sent to his credit by him after 16thMarch, 1960, as the Bank statement shows. From all this evidenceit seems quite clear that when the accused drew the cheque on 1st April,he knew that it would not be paid. His intention in obtaining Rs. 300from Albert by giving him this cheque was clearly to deceive him and toinduce him to part with that sum of money. I do not think this is a case
212
SANSOOT, J.—Caldara v. Wijewarderu
where the accused did not know the nature of the allegations against him,nor do 1 think that the accused was taken by surprise in any tray. Onthe facts the guilt of the accused was clearly proved.
The other point urged in appeal was that the police officer who broughtthe accused before the court should have given evidence before the chargewas framed. Mr. de Silva referred me to two judgments of Sinnetamby, J.given on 24th February, I960, and 3rd March, I960, where it was heldthat failure to record the police officer’s evidence under such circum-stances render the proceedings void. I have also been referred to amore recent judgment of T. S. Fernando, J. given on 23rd November,1961, where he held that there was no imperative provision of the lawrequiring a Magistrate to record the evidence of the poLice officer. Imight also refer to the case of Mohideen v. Inspector of Police, Pettahwhere Basnayake, C.J. and K. D. de Silva, J. (Pulle, J. dissenting)decided that where an accused is brought before the court in custodywithout process, evidence should be recorded before a charge is framed.In the later case of de Silva v. Sub-Inspector of Police, Matara?, Basnayake,
J. has held that where proceedings are instituted under section148 (1) (b) of the Code, the evidence of the person who broughtthe accused before the court need not be recorded. The learned ChiefJustice would appear to have confined the application of section 151 (2),so fax as it requires the evidence of the person who brought the accusedbefore the court to be recorded, to cases where no report is filed undersection 148 (1) (b). If that be the correct view, then there was noirregularity in the case I am now deciding.
But I shall assume that there was an omission, as I wish to base mydecision on another ground as well, and that is on section 425 of the Code.That provision cannot be overlooked and it has in fact been applied incases very similar to the present one by Howard, C.J. in Assen v.Maradana Police3 following earlier cases, and by Wijeyewardene, J. inThomas v. Inspector of Police, Kottaxoa4. A contrary view appears to havebeen taken by Soertsz, J. in Vargheese v. Per era5. In deciding whichview I should follow I take into account that section 425 provides that“no judgment passed by a court of competent jurisdiction, shall bereversed or altered on appeal or revision on account (a), of any error,omission or irregularity in the complaint, summons, warrant, charge,judgment or other proceedings before or during trial …. unlesssuch error, omission, irregularity …. has occasioned a failureof justice.” There wae a time when it was thought that the positiverequirements of the Code were ail essential, and that any breach of sucha requirement constituted, an illegality. The supporters of this viewgenerally rely on the case of Subrcmania Iyer v. King Emperor ®, decidedby the Privy Council. But if this is the only possible view, section 425will be of little use, for it is in just those cases where an express provisionof the Code has been violated that the section 425 can serve any purpose.
1 (1057) 59 N. L. It. 217.
(1060) 6$ N. L. B. 92.
(1044) 45 N. L. E. 269.
« (1045) 47 N. h. E. 42.
» (1942) 49 N. L. B. 564.•(1002) 26 Mad. 61.
SANSONI, J.—Oaldera v. Wijewardene
213
The Privy Council itself has held in later cases that not all infringe-ments of the Code render the proceedings illegal or void. Thus in Abdul'Raman v. Emperor1, it was held that a violation of the section correspond-ing to our section 299 which requires the deposition of each witness tobe read over to him in the presence of the accused or his pleader was notfatal. In Pvlukuri Kotayya v. Emperor3 the Privy Council deprecatedthe taking of too narrow a view of the operation of section 537 of theIndian Code which corresponds to our section 425. Sir John Beaumontthere said: " When a trial is conducted in a -manner different fromthat prescribed by the Code (as in Subramania Iyer’s case) the trialis bad and no question of curing an irregularity arises ; but if the trialis conducted substantially in the manner prescribed by the Code butsome irregularity occurs in the course of such conduct, the irregularitycan be cured under section 537 and none the less so because theirregularity involves, as must nearly always be the case, a breach of oneor more of the very comprehensive provisions of the Code. The distinc-tion drawn in many of the cases in India between an illegality and anirregularity is one of degree rather than of kind.”
There is also a recent decision of the Supreme Court of India in whichthe operation of section 537 was considered, see Slaney v. State of MadhyaPradesh3. Bose, J. expressed the view that the trend of the more recentdecisions of the Privy Council, and indeed all later-day criminal juris-prudence in England as well as in India, has been away from technicality,to regard the substance rather than the shadow, and to see whethereven where there has been a non-compliance with the provisions of theCode there has actually been a failure of justice. ChandrasekheraAiyar, J. pointed out in that case that the gravity of the defect willhave to be considered—whether it is a mere unimportant mistake inprocedure or whether it is substantial and vital. He said : “ If it is sograve that prejudice will necessarily be implied or imported, it may bedescribed as an illegality. If the seriousness of the omission is of a lesserdegree it will be an irregularity, and prejudice by way of failure of justicewill have to be established.” As instances of illegality he mentioned“lack of competency of jurisdiction, absence of a complaint by theproper person or authority specified, want of sanction prescribed as acondition precedent for a prosecution, in short, defects that strike atthe very root of jurisdiction.”
What then should be said regarding the emission to record the evidenceof the officer who produced the accused in court on the first day ? Canit be seriously argued, in the absence of any application that he be calledas a witness, that the omission caused prejudice to the accused 1 I haveno doubt that the omission falls within section 425.
The appeal is dismissed.
Appeal dismissed.
-A.I.R. [1947) P.C.67.
A. I. R. (1956) S. C. 116.
1 A.I.R. (1927) P. G. 44.