031-NLR-NLR-V-53-JOHN-PERERA-Appellant-and-WEERASINGHE-Respondent.pdf
158
John Percra v. Weerasinghe
1050Present:Nagalingam J.JOHN PEBERA, Appellant, and WEERASINGHE, RespondentS. C. 930—M. C. Gampaha, 51,038
Charge—Application for amendment—Principle underlying grant or refusal—Discre-tion vested in Court—Must be properly exercised—Criminal Procedure Code,S. 172.
Where, owing to misjoinder and uncertainty of the charges, an applicationto amend the charges was made but was refused on the mere ground that thedefence strongly objected to the amendment—
Held, that an amendment of a charge should not be refused by the Judgeunless it is likely to do substantial injustice to. the accused. Section 172 ofthe Criminal Procedure Code is wide enough to permit' the withdrawal 'of oneor more counts or charges in an indictment or complaint.
159
NAGALINGAM J.—John Percra v. Weeraxinghe
T’PEAIj from a judgment of the Magistrate’s Court, Gampaha.
R. S. Wanasundera, for the complainant appellant.
Li. F. Ekanayake, for the accused respondent.
Cur. adv. vult.
October 16, 1950. Naqalingam J.—
This is an appeal from an order of the learned Magistrate of Gampaharefusing an application of the complainant to amend tire charges againstthe accused person by withdrawing one of three charges framed againsthim and by interpolating certain words in the other two charges in orderto bring them in conformity with the provisions of the. law.
The prosecution against the accused person was founded under theVillage Communities Ordinance, Cap. 198 Ii.E., and consisted in theallegation that the accused who was Chairman of a Village Committeehad failed in his duty to report the absence of certain members fromVillage Committee meetings and thereby had incurred liability to punish-ment.
When the case came up for trial on the first occasion, objection wastaken to the prosecution on the ground that the provision of the law underwhich the accused person was sought to be punished had been abrogated.
■ The learned Magistrate upheld this contention and dischargedthe accused. The complainant appealed from the order, and thisCourt set aside the learned Magistrate’s order and directed the caseto be tried on its merits. When the.case went back to the Magistrate sCourt the prosecutor discovered that there was firstly a misjoinder ofcharges and secondly that the charges as framed did not disclose ade-quately the offence with the commission of which the accused was charged.
Of the three offences with which the accused was charged, the firstwas said to have been committed between 23rd July, 1948, and 15thFebruary, 1949, while the other two offences were said to have beencommitted between 6th September, 1946, and 23rd December, 1946.It would thus be seen that these charges could not have been joined asthere was a violation of the provisions of section 17& of the CriminalProcedure Code in that all these offences had not been committed withina space of twelve months from the first to the last of such offences. Theprosecutor therefore moved that he be permitted to withdraw the firstcharge. The learned Magistrate does not specifically deal with this inhis order.
The prosecutor having also discovered that the other two charges asframed alleged that the respondent had wilfully neglected to report tothe Government Agent that members had absented themselves “ onthree consecutive meetings of the Village Committee ” while the offencecreated by the enactment consisted not in neglecting to report the absenceof a member from three consecutive meetings but in neglecting to reportthe absence of a member without leave of the Committee from morethan three consecutive meetings, application was also ihade to amendthe other two charges by the addition of the necessary words in order tospecify the charges accurately.
16-N.L.R. Vol.-Liii
160
NAGALINGAM J.—John Perera v. Weerasinghe
The written application that was made for amendment also sufferedfrom infirmities and application was made ore tenus to make furtheram endments.
That the prosecutor has been "careless and negligent in the extremethere can be little doubt. The question, however, is whether the learnedMagistrate was right in refusing to accede to the application to amendthe charges. No reasons have been given, except that the defence-strongly objects to the amendment. Under section 172 of the CriminalProcedure Code, power is vested-in a Court to alter a charge at any timebefore judgment is pronounced. There can be little doubt that this is adiscretionary power that is vested in the Court but such a discretionmust be exercised judicially. Had the learned Magistrate given anyreasons save that the defence strongly objects, it would have been possibleto test whether the discretion has in fact been properly exercised. Inthe present state of the record it is not possible to do so and i have to' consider the question anew.
The principle underlying the grant or refusal of an application to amend,was laid down in a very early judgment of this Court in the case of TheQueen v. Sinno Appu 1 in which Fleming A. C. J. laid down the proposi-tion that an amendment should not be refused by the Judge unlessit is likely to do substantial injustice to an accused. In the samecase Lawrie J. expressed the view that the “ Judge should be ready to-listen to and willing to adopt any amendment which will have the effect ofconvicting the guilty or of acquitting the innocent ”. I nave had no-arguments addressed to me on behalf of the respondent to indicate thatany substantial injustice or prejudice other than legitimate is likely to becaused to him by reason of the amendment being allowed. Furthermore,when I consider that the charges relate to the commission of oSences by aperson holding a public office, T am the less reluctant to refuse the amend-ment.
The case of King v. Emanis 2 is an authority for the proposition thatsection 172 of the Criminal Procedure Code is wide enough to permit thewithdrawal of one or more counts or charges in an indictment or com-plaint. I think tfeis is a fit case where the learned Magistrate shouldhave exercised his discretion in favour of the complainant and allowed theamendments.
I therefore set aside the order of the learned Magistrate and allow thecomplainant to withdraw the first charge in the complaint and to set outthe complaint in respect of the other charges in manner following: —
The complainant abovenamed complains to this Court that theaccused abovenamed being the Chairman of the Village Committee ofFgodapatha Village area did between the 6th September, 1946, and23rd December, 1946, wilfully neglect to send within seven days of theabsence without leave of the said Committee of D. P. Ranatunga^member for Dematadenikanda of the said Village Committee, frommore than tlyee consecutive meetings of the said Committee, writteninformation to the Government Agent, Western Province, that thesaid D. P. Ranatunga had absented himself without leave Of the said1 7 S.C. C. 51.1 (1940) 41 V. L. E. 529.
NAGAL1NGAM S.P.J.—MallikapiUai v. Ahamadu Marikar
161
Committee from more than three consecutive meetings of the saidCommittee and thereby committed an offence punishable under section19 (6) of the Village Communities Ordinance, Cap. 198, as amended bythe Village Communities (Amendment) Ordinance, No. 64 of 1942.
At the same place aforesaid and within the said dates the sai<£accused did wilfully neglect to send within seven days of the absence?without leave of the said Committee of R. T. Don Rajapaksa, memberfor Udammita of the said Village Committee, from more than threeconsecutive meetings of the said Committee, written information to theGovernment Agent, Western Province, that the said R. T. DonRajapaksa had absented himself without leave of the said Committeefrom more than three consecutive meetings of the said Committee andthereby committed an offence punishable under section -19 (5) of theVillage Communities Ordinance, Cap. 198, as amended by the VillageCommunities (Amendment) Ordinance, No. 54 of 1942,and direct the trial of the accused on these charges.
Appeal allowed.