( 104 )
MENDIS v. FERNANDO.P. C., Panadure, 7,679.
Irregularity—Criminal Procedure Code, a. 187—Police Court proceedings.
Where no summons or warrant was issued, but the accused appearedbefore the Police Court, it is the duty of the Magistrate to frame acharge under section 187 in writing, and then to read it to the accusedunder section 187 (3).
The object of the provisions contained in section 187 (1, 2, and 3)is to apprise the accused, by the summons, warrant or charge, of theprecise accusation against him, and the omission to observe theseformalities would render void all subsequent proceedings.
GAINST the order of acquittal made in this case of stabbing
by the Police Magistrate, the Attorney-General appealedon the ground of irregularity of proceedings.
Walter Pereira, Acting S.-G., for appellant.—No summons orwarrant appears to have been issued; nor charge framed undersection 187 (1) of the Criminal Procedure Code; nor statementof the particulars of the offence read by the Magistrate to theaccused under sections 187 (2) and 187 (3). All the evidenceavailable for the prosecution in this case of stabbing was notrecorded, as enjoined by section 190, before the order of acquittalwas made. There is no entry in the* record that the case for theprosecution was closed. Evidence recorded in another case, 7,676,appears to have been utilized by the Police Magistrate, without anypart of it being read in evidence here.
No appearance for respondent.
12th June, 1900, Browne, A.J.—
As far as I can gather what happened was this. The partieshad a row in the carpenter’s shed of the complainant, Thomis.Mendis, who was stabbed with a chisel, while accused, JuanisFernando, received three incised wounds and two contusions.Accused went home and sent for the police headman and com-plained to him against Thomis Mendis, Gregoris, and Anthony.The headman arrested Gregoris and produced him before thePolice Court with a report, and proceedings bearing No. 7,676were instituted. On the same day at 4 p.m. Thomis Mendis cameto Court bringing a report from the same headman, which readsonly as if it were the record of a complaint made, but not indicat-ing any inquiry or arrest. The prosecution, the subject of thisappeal, was instituted on the next day by the examination of .
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.