049-NLR-NLR-V-66-K.A.-ALADIN-Appellant-and-SUB-INSPECTOR-OF-POLICE-GANEMULLA-Respondent.pdf
Aladin v. Sttb-Inspeclor of Police, Ganemulla
211
Present: H. N. G. Fernando, J.K.A. ALADIN, Appellant, and SUB-INSPECTOR OF POLICE,GANEMULLA, RespondentS. C. 263—M. C. Gampaha, 65120f A
Criminal procedure—Charge—Amended plaint—Duty of Court to frame fresh charge.
Where an amended plaint is filed in a criminal case, it is the duty of theCourt to frame a fresh charge on the amended plaint.
After the closure of the case for the defence, Counsel for the accused drewthe attention of the Magistrate to the fact that there had been an amendedplaint and that the accused had not been charged on the amended plaint.No notice, however, was taken of this matter and the Magistrate proceededto convict the accused on the draft amended charge.
Held, that the conviction without due amendment of the charge was illegal.
212 H. N. G. FERNANDO, J.—-Aladin v. Sub-Inspector of Police, Ganemulla
Appeal from a judgment of the Magistrate’s Court, Gampaha.
M. M. Kumarakulasingham, for the Accused-Appellant.
A. A. de Silva, Crown Counsel, for the Attorney-General.
June 28, 1962. H. N. G. Fernando, J.—
This is an appeal against a conviction for an alleged offence underthe Excise Ordinance. The plaint against the accused had been filedon 31st May, 1961, and summons was then issued. On the 28th June,1961, when the accused appeared in Court it would appear that thecharge sheet was read to him and the charge sheet records that in answerto the charge he had pleaded not guilty. The trial was then fixed for16th August, 1961, but for various reasons the trial did not actuallycommence until 30th August, 1961. It was adjourned on that day andultimately the trial was resumed on 3rd January, 1962.
After the closure of the case for the defence, Counsel for the accuseddrew the attention of the Magistrate to the fact that there had beenan amended plaint and that the accused had not been charged on theamended plaint. No notice, however, was taken of this matter andthe Magistrate proceeded to convict the accused and pass sentenceon him.
A reference to the record shows that on 13th December, 1961, thePolice had filed an amended plaint. This plaint differed from theoriginal plaint in more than one respect. In the first instance, whereasthe original plaint referred only to the offence of possession of unlawfullymanufactured spirits punishable under section 44 of the former LegislativeEnactments, the amended plaint, though not very clearly drafted, refersboth to possession of unlawfully manufactured spirits and also topossession of exciseable articles on which the prescribed duty had notbeen paid and refers respectively to section 46 (a) and section 47 of theOrdinance as reproduced in the new Legislative Enactments. Primafacie, it would appear that the amended plaint was filed for two purposes,firstly, in order substantially to alter the charge originally brought,and secondly, to make the charges referable to the Ordinance as it existsin the new edition of the Legislative Enactments.
There is also in the record what purports to be a second charge sheetdated 13th December, 1961, which contains a charge on the lines ofthe amended plaint filed on the same day, but it is clear that this amendedcharge sheet was not read to the accused and it follows that his pleawas not recorded to the amended charge.
The fact that the Magistrate took no notice of Counsel’s statementto him regarding the amended charge might at first sight mean thatthe Magistrate was proceeding to conviction on the original chargewithout alteration, but it seems to me that in fact that was not the case,
Appuwa v. Assistant Commissioner of Agrarian Services
213
for in recording the conviction on 31st January, 1961, the Magistratehas stated “ I convict accused on count 1.” Since the original changesheet quite clearly contained only one count, it is unlikely that theMagistrate would have referred to that count as count 1. On the otherhand, the second charge sheet which was not read to the accused doesappear to contain two different counts—a circumstance which leads meto the conclusion that the Magistrate in fact convicted the accused onthe draft amended charge and not on the original charge sheet.
This is not the first occasion in recent years when instances of thissort have been brought to my notice showing that very little care issometimes exercised with regard to the provisions of the CriminalProcedure Code regarding charges. If an amended charge sheet was,as in this case, filed by the prosecution, it was the duty of the Courtto consider whether the charge previously read to the accused did infact need amendment and if it did, it was then the duty of the Court toamend the charge, to read out the fresh charge to the accused, and thento decide whether an immediate continuance of the trial was proper.None of these steps were taken in this case despite the fact that the matterwas distinctly brought to the notice of the Court at the close of thecase for the defence. In the result, it is by no means clear whether theaccused has been convicted upon a charge duly read out to him incompliance with the provisions of the Code.
In all the circumstances of the case I do not think the accused shouldbe ordered to face a fresh trial. The conviction and sentence are set aside.
Appeal allowed.