071-NLR-NLR-V-18-MOHAMADU-v.-SINNIAH.pdf
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1915.
'Present: Wood Eenton C.J.
MOHAMADU v. SINNIAH.401—P. C. Kurunegala. 20,495.
CriminalProcedure Code,s. 437—Complainant shouldbeashed to show
cause before making order to paycompensation—Desirability of
calling all witnesses for the prosecution if complainant wants them.
Itis not essentialthat a complainant shouldbeallowed to call
all his witnesses before a charge under section 437 of the CriminalProcedure Code can be made against him. But the Judge shouldpnt to the complainant the fact that he is disposed to believe thecase to be false, and his reasons for that impression. The complain-ant should be asked who the other witnesses arc. and if he statesthatthey are in aposition to strengthen hiscase,they should be
pnt into the witness box.
fjp HE facts are set out- in the judgment.
No appearance for the appellant.
May 27, 1915. Wood Eenton C.J.—
– This is an appeal by a complainant who has been sentenced bythe Police Magistrate to pay a fine of Es. 25 under section 437 of theCriminal Procedure Code. It is with great regret that, in this asin so many other cases of the same kind, I feel constrained to inter-fere, although I see no reason to doubt the soundness of the view
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taken by the Police Magistrate of the evidence given by the com-plainant and his witnesses. The complainant states in his petitionof appeal that no opportunity was given to him of showing causeagainst the charge under section 487 before the Police Magistrate.took action upon it. That statement is borne out by the recordso far as it goes. The irregularity is a fatal one. The provisionsof section 487 and of the group of sections of which it forms partare most salutary, and I for one am very far from having any desireto impair their efficiency. But they must- be applied in accordancewith recognized principles of law. No order can be made againsta complainant under the section with which we are here concernedtill he has had the chance of showing cause against- it. Any previousdoubt that may have existed on that point is now removed by therecent decision of two Judges—pronounced since this** ease firstcame before me in appeal—in Kiribatula v. Tiruambalam.1 Thedifficulties which cases of this kind so constantly present inappeal would be obviated if the Courts of first instance would dealwith the matter on such lines as these. It has never seemed to me tobe essential as a matter of law that a complainant should be allowedto call all his witnesses before a charge under section 437 can bemade against him. But the Judge of trial would be well advised if.before taking action under section 437, he would put to .the accusedthe fact that he is disposed to believe the case to be false, and hisreasons for that impression. Although it may not strictly benecessary that every available witness should be examined beforethe provisions of section 437 can fairly be invoked, it is certainlyhighly desirable that the compbunant should be asked who theother witnesses are, and that if he states that they are in a positionto strengthen his case, they should be put into the witness box.Abundavs cautela is the only safe line for the administration of sucha drastic, although useful, enactment as section 437 of the CriminalProcedure Code. The complainant alleges in his petition of appealthat he had not the opportunity of calling all the evidence whichhe desired to place before the Court. It is impossible for me to saywhether or not* that allegation is well founded. But* I have thoughtit right to make some observations as to the way in which Courtsof first iustance should approach the application of section 437 ofthe Criminal Procedure Code, if they desire, as we all desire, that itshould be made effective. Apart altogether, however, from thequestion as to whether the complainant called the whole body ofevidence at his disposal, the failure of the Police Magistrate togive him a distinct opportunity of showing cause against the chargeunder section 437 is fatal to the proceeding. I set aside the orderunder appeal.
i (IMS) 18 N. L. ft. U2.
Set aside.
1915.
Wood
Renton C.J.
Mahctmadnv. timniaU