Cur. adv. vult.
( 105 )
Thomis Mendis, but the only order made was to send him to thedoctor and fix the case for the 26th. There is no record thataccused was present. No summons or warrant is recorded to havebeen ordered, and somehow or other the accused came before theCourt on the 2nd April, and again on the 9th April, on which daythere was inquiry into his own complaint bearing No. 7,676, andon that day there is a record that he was required to give bail toattend the next day. He failed to do so and was produced incustody, and then the record was made: “ Charge under section315 explained [section 187 (2)], Accused pleads not guilty.”
Assuming that the entry I have quoted was intended to expressthat the Court was proceeding as under the contingency specifiedin section 187 (2) of the Criminal Procedure Code, it is plain,both from the absence of any mention of issue of summons orwarrant in the record and from the admission of the Magistratein his letter of 7th May, that neither was issued, and so that clauseof the section was inapplicable.
Even, however, if it was applicable, the entry should have been:” The statement of the particulars of the offence contained in the“ summons or warrant is read to the accused, and he is asked if” he has any cause to show why he should not be convicted ”[section 187 (3)]. But as it was inapplicable, it was the duty of theMagistrate to (1) frame a charge [section 187 (1)], which neces-sarily must be in writing, because he had also (2) to ” read suchcharge ” to him [section 187 (3)], and he did not do either ofthese.
The purport of these provisions is to show that the accused was•apprised by the statement in either the summons or warrantserved on him, or the written charge read to him erf the precise■accusation against him. This not having been done, the proceed-ings are entirely irregular, and I quash all subsequent to those of21st March, and remit them to be proceeded with in due course.
JuneSandlS.Bbowhb, A.J.