133-NLR-NLR-V-45-MARIYANAYAGAM-Appellant-and-BASNAYAKE-Respondent.pdf
WIJBYEWAEDENB J.—Mariyanayagam and Basnayake.
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1944Present: Wijeyewardene J.MARI Y ANA YAGAM, Appellant, and BASNAYAKE, Respondent.
648—(Joint) M. C. Colombo, 1,084.
Charge—Charge of theft and in the alternative of receiving stolen property andassisting in disposing of stolen property—No charge framed under thelatter offences—Fatal irregularity—Penal Code, ss. 366, 394, and 396.
Where the accused was charged with theft and, on the trial date,theprosecution moved that the alternative charges under sections 394
and 396 of the Penal Code be added without any objection on the partof the accused’s Counsel, and where the Magistrate proceeded to try theaccused and convicted him under section 396,—
Held, that the failure to frame a charge vitiated the conviction.
Held, further, that the conviction under section 396 could not be justi-fied under the provisions of section 182 of the Criminal Procedure Code.
The King v. Piyasena (44 N. L. B. 58) followed.
A PPEALi from a conviction by the Joint Magistrate of Colombo.
N. Nadarajah, K.C. (with him H. Wanig at unge), for the accused,appellant.
G. P. A. Silva, C.C. for the Crown, respondent.
Cur. adv. vult.
October 13, 1944. Wijeyewardene J.—
The Police filed a written report on May 1, 1944, charging the accusedwith the theft of a typewriter. The accused was present in Court onMay 10 and the Magistrate framed a charge of theft and read the chargeto him. On the accused pleading not guilty to the charge the Magistratefixed the trial for May 15. On that day the prosecuting Inspector movedthat the alternative charges under sections 394 and 396 of the Penal Code“ be included in the case.” This was allowed and the Magistrateproceeded with the trial as the accused’s Counsel had no objection to the“ amendment ” and did not want a postponement. The Magistratedid not frame any charges under sections 394 and 396 of the Penal Codeand the record does not give the slightest indication of the accused beingeven made aware of the alternative charges.
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WTJE YE WATtRENE J.—Mariyanayagam and Basnayake.
The accused called one witness but did not give evidence himself.The Magistrate convicted the accused under section 396 of the PenalCode and sentenced him to three months’ rigorous imprisonment.
T am unable to sustain the conviction in view of the failure of theMagistrate to frame a eharge in respect of the offence under section 396ef the Penal Code. The Crown Counsel contended that the convictioncould be justified in view of the provisions of section 182 of the CriminalProcedure Code. The decision of The King v. Piyasena1 is a clearauthority against that contention.
I quash the conviction and send the case back for a fresh trial befoteanother Magistrate on a properly framed charge.
Conviction quashed.
{1942) 44 N. C. R. 58.