062-NLR-NLR-V-39-MOLAGODA-v.-GUNARATNA.pdf
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Molagoda v. Gunaratna.
1937Present: Maartensz J.
MOLAGODA v., GUNARATNA.
399—P. C. Dandagamuwa, 145.
Charge—Rules under the Forest Ordinance—Failure to specify number ofrule—Mistake regarding date of Gazette—Irregularity—CriminalProcedure Code, s. 425.
The accused was charged on two counts with the breach of rules madeby the Governor under the Forest Ordinance of 1907.
In the charge on the first count the number and the date of the Gazettein which the rule was published were wrongly stated.
In the charge on the second couAt the number of the rule and thenumber and date of Gazette were not mentioned.
Held, that the conviction on the first count was good as the irregularityhad not occasioned a failure of justice and was cured by the provisions ofsection 425 of the Criminal Procedure Code.
Held also, that the conviction on the second count was bad.
PPEAL from a conviction by the Police Magistrate of Dandagamuwa.
J.R. Jayawardene, for accused, appellant.
T. S. Fernando, C.C., for respondent.
Cur. adv. vult.
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MAARTENSZ J.—Molagoda v. Gunaratna.
September 23, 1937. Maartensz J.—
The accused-appellant in this case was charged with and convicted ofcommitting a breach of certain rules made by the Governor under theprovisions of the Forest Ordinance, No. 16 of 1907.
It was contended in appeal that the conviction was bad both on thefacts and in law.
I am not prepared to interfere with the learned- Police Magistrate’sfinding of fact that the accused committed the acts complained of.
The legal objection to the conviction is that the charge framed againstthe accused is defective.
The charge is as follows :—"You, Don William -Gunaratna, are herebycharged as follows, that you did, within the jurisdiction of this Court, atGalagedara Mukalan, about September, 1936, fell or cause to be felledand remove or cause to be removed timber valued at Rs. 46.50 fromGalagedara Mukalana, proposed Forest Reserve, without a permit froma duly authorized person in breach of rule 6 (1) Ndated June 2, 1934, madeby the Governor under section 21 of Ordinance No. 16 of 1907, andpublished in Government Gazette No. 8,059 of June 15, 1934, and also inbreach of rule made by the Governor under section 24 of Ordinance No. 16of 1907, and thereby committed an offence punishable under sections 22and 25 of Ordinance No. 16 of 1907 ”.
The number of the rule referred to in the second count of the chargeand the number and the date of the Gazette in which it was published arenot specified in the charge, and the conviction of the accused for a breachof this rule cannot be sustained. f
The rule referred to in the first count was not published in the GazetteNo. 8,059 of June 15, 1934.
It is a well known rule, and the trial proceeded to the conviction – of theaccused on the assumption that it was published in that Gazette.
At the argument in appeal Crown Counsel brought to my notice thatthe rule in question was published in Gazette No. 8,057 of June 8, 1934.
The question I have to decide is whether the conviction of the accusedis bad because the correct number and date of the Gazette in which therule was published was not specified in the charge.
Mr. Jayawardene, for the appellant, argued that the error was not one .which could be cured by the provisions of section 425 of the CriminalProcedure Code. He contended that the quotation of the wrong Gazettein the charge was as fatal as the omission to frame a charge at all, or toframe a charge in accordance with the provisions of the Criminal ProcedureCode.
I am unable to agree with him. The omission to frame a charge atall is bound to prejudice an accused as he would not know what he hadto meet.
The omission to frame a charge in accordance with the provision of theCriminal Procedure Code is a breach of a specific.rule of law, as was thecase in Ebert v. Perera1.
1 {1922) 23 N. L. R. 362.
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Silva v. Low-Country Products Association.
In that case proceedings were instituted against the accused cn a^written report under-section 148 (b) of the Criminal Procedure Code. Theoffence, which the accused was alleged to have committed was punishablewith more than three months’ imprisonment.
The Magistrate endorsed on the report “ charge read from the report ”.Section 187 of the Criminal Procedure Code provides that “ it shall belawful for the Magistrate to read such report, amended if necessary, as acharge ”, where the report discloses an offence punishable with not morethan three months’ imprisonment. As the report disclosed an offencepunishable with more than three months’ imprisonment, it was held therewas an omission to frame a charge and that the irregularity was notcovered by section 425.
In this case a charge has been framed as required by section 187 of theCriminal Procedure Code, and except for the mistake as to the numberand date of the Gazette, the charge as regards the first count complieswith every requisite of a charge prescribed by section 167 of the CriminalProcedure Code, 1898.
The acts which constitute the breach of the rule are sets out in thecharge, and the accused knew what offence he was charged with. Themistake has therefore not occasioned a failure of justice.
I accordingly hold that the error is one to which section 425 of theCriminal Procedure Code applies.
I set aside the conviction under section 25 of the Forest Ordinance of1907, and affirm the conviction under section 22.
The sentence passed on the accused, based on the value of the timber,is well within the limits of the fine prescribed by section 22 of theOrdinance, and I see no reason to interfere with it.
Varied.