096-NLR-NLR-V-64-MANUEL-NADAR-Appelant-and-J.-P.-LIYANAGE-Inspector-of-Police-Respondent.pdf
526
Manuel Nadar v. Liyanage
1963
Present: L. B. de Silva, J.
j—- * –
MANUEL NADAR,"Appellant, and J. P. LIYANAGE (Inspector
of Police), Respondent
S. C. 1,249—M. G. Gampola, 510
Criminal procedure—Accused brought before Court otherwise than on summons—Dulyof Magistrate to comply with provisions ofs. 187 (1) of Criminal Procedure Code.
Where an accused is brought before Court otherwise than on summons orwarrant, the provisions of section 187 (1) of the Criminal Procedure Code mustbe complied with and direct evidence implicating the accused must bo ledbofore he is charged in the case. Even where the accused appears in Court 6nPolice bail without the issue of summons or warrant,, and the issue of summonson him is ordered on the same day, the provisions of section 187(1) wouldapply.
Appeal from a judgment of the Magistrate’s Court, Gampola.Colvin JR. de Silva, with ilf. L. de Silva, for the Accused-Appellant.
J.A. de Silva, Crown Counsel, for Complainant-Respondent.
Cur. adv. mdt.
l(1962) 63 N. L. R. 509.1962) 64 N. L. R. 141.
z(1950) 1 A. E.R. at 168.
L. B- DE SILVA, J.—Manuel Nadar v. IAyanage
5 27
March 12, 1963- L. B. de Silva, J.—
The Inspector of Police filed a plaint against the accused under section148 (1) (&) of the Criminal Procedure Code on 25th January, 1960. On .that day the accused was present in Court on Police bail. The Inspectorproduced certain productions to be sent to the Government Analyst butgave no evidence implicating the accused. Thereafter the learnedMagistrate ordered issue of summons on the accused for a subsequentdate.
Summons was served on the accused and he appeared on that date andhe was charged from summons. Learned Counsel for the accused-appellant urged that the proceedings were irregular as the learned Magis-trate failed to record evidence under section 187 of the Criminal ProcedureCode before the accused was charged.
This appeal came up before me on 14th July, 1961 and Counsel informedCourt that the same question of law had been argued before a bench ofthree Judges and judgment had been reserved.
As this was the only point urged before me, I reserved judgment to bedelivered after the decision of the bench of three Judges was given.Though the judgment (Martin Appuhamy v. S. I. Police, Jaffna1) ofthat bench was delivered on 11th April, 1962, I regret that I have bver-looked this case till my attention was drawn to it by the Registrar on8/3/63.
In view of the decision in that case, it is now settled that where anaccused is brought before Court otherwise than on summons or warrant,the provisions of section 187(1) must be complied with and that directevidence implicating the accused must be led before he is charged in thecase. Even where the accused person appears in Court on bail withoutthe issue of summons or warrant, the provisions of section 187 (1) wouldapply to him.
The aocused in this case first appeared in Court oh the day the plaintwas filed, without any issue of summons or warrant on him. This caseis slightly different from the case of Martin Appuhamy v. S. I. Police,Jaffna. In this case, the Magistrate ordered the issue of summons onthe accused in spite of the fact that he was present in Court and when heappeared on service of summons, the Magistrate charged him. It is inkeeping with the law laid down in Martin Appuhamy'8 case that theMagistrate should have recorded direct evidence implicating theaccused on the charge laid against him in the plaint before proceeding tocharge him for that offence. I hold that compliance with the provisionsof section 187 (1) of the Criminal Procedure Code was imperative in thiscase and that the Magistrate was not entitled to circumvent theseprovisions by ordering the issue of summons on an accused person whowas already in Court.
i (1962) U N. L. JR. 34.
528. SRI SKANDA RAJAH, J.—Siyathu v. Inspector of Police, Welimada
I accordingly set aside the conviction and sentence' passed on theaccused and all proceedings held in the Magistrate’s Court after 25thJanuary, 1960 and send this case back for fresh proceedings after com-plying with the provisions of section 187 (1) of the Criminal ProcedureCode.
Case sent back for fresh proceedings.