PERERA (S. I. Police ) , Appellant, and PAULU SUARIS et al, Respondents

100-NLR-NLR-V-51-PERERA-S.-I.-Police–Appellant-and-PAULU-SUARIS-et-al-Respondents.pdf


Perera v. Paulu Suaris
40!)
1950Present: Jayetlleke C.J. and Swan J.
PERERA (8. I. Police), Applicant, and PAULU SUARISet al., Respondents
.S'. C. 538—Application in revision in M. C, KanaduUa, 2,415
Criminal procedure—Prosecution initiated by police officer—Right of private pleaderto conduct’prosecution—Criminal Procedure Code (Cap. 16), sections 14$ (1) (6),
A police officer made a roport under section 148 (1) (6) of the CriminalProcedure Code in respect of the commission of an offence which was triablesummarily. On the date of trial ho stated that he appeared for the prosecution.A Proctor thon appeared and stated that he had been retained by the aggrievedparty to conduct the prosecution and claimed the right to do so. The policeofficer opposed the application on the ground that the prosecution hod beeninitiated by him.
Held, that a police officer who institutes proceedings in the Magistrate'sCourt is ontitlod to appear and conduct the prosecution at tho trial. Apolico officer who makes a written report to a Magistrate comes within thewords “ complainant ” or “ any officer of any Government Department ”in section 199 of the Criminal Procedure Code.
Dc Silva v. The Magistrate of Qampola (1943) 44 N. L. R. 320 overruled.
J^,PPLICATION to revise an order of the Magistrate’s Court, KanaduUa.This application was reserved by Jayetileke C.J. for consideration by aBench of two Judges.
R. R. Crossette-Thambiah, K.C., Solicitor-General, with H. A. Wijemanne,Crown Counsel, and S. S. Wijetsinha, Crown Counsel, in support.—The question for determination in this case is whether the police officerwho initiated proceedings in the Magistrate’s Court under section148 (1) (6) of the Criminal Procedure Code has or has not the right toconduct the prosecution. The accused was charged with the theftof coconuts from the land of one Jtande Naide. The Magistrate hasupheld the claim of Kaudo Naide to conduct the prosecution by hispleader Mr. 0. M. P. Perera. Tho Magistrate held ho was bound bythe decision of the Supreme Court in De Silva v. The Magistrate, Qampolal.
The right to conduct the prosecution in summary cases such as thisis governed by section 199 of the Criminal Procedure Code. Underthis section the right to appear in and conduct the prosecution in summarycases is given to the Attorney-General, to the Solicitor-General, or toa pleader appointed by the Attorney-General. In the absence of theseofficers the right to appear in and conduct the prosecution is given tothe complainant or any officer of any Government Department or anyofficer of any Municipality, District Council or Local Board in any casein which such complainant or District Council or Local Board orMunicipality or Government Department is interested.
On the question as to the meaning to be attached to the wordcomplainant in section 199 of the Criminal Procedure Code there areconflicting decisions of this Court. In Grenier v. Edwin Perera2Keuneman J. was of opinion that a person making a written or oral' (/94-3) 44 N. L. R. 320.* (1941) 42 N. L. R. 377.
18LI.
I1. K. A 98322—1,042 05/50)
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Perera v. Paulu Swan's
complaint under section 148 (1) (a) or a Police Officer making a writtenreport under section 148 (1) (6) or yet again the aggrieved person givinginformation to a police officer when the police officer makes the writtenreport under section 148 (1) (6) may be regarded as coming within themeaning of “ complainant” in section 199 of the Criminal ProcedureCode. Keuneman J. held further in that case that a police officor whomakes the written report under section 148 (1) (6) is an officer of aGovernment Department interested in such case. But in De Silva v.Magistrate of Gampola (supra) de Kretser disagreed with the view' takenby Keuneman J. and held that a police officer who makes a writtenreport under section 148 (1) (6) does not come within the words“ complainant ” or “ officer of a Government Department ” as contem-plated by section 199 of the Criminal Procedure Code. In The Attorney•General v. Herath Singho1 Dias J. disagreeing with the view taken byde Kretser J. held that the police officer who initiates proceedings ina Magistrate's Court with a written report under section 148 (1) (6) isa complainant within the meaning of section 199 and that he alone isentitled to conduct the prosecution us complainant. There is also anold case Thomas v. Cornells2 where Browne -1. was of opinion thatthe word “ complainant ” referred to head (a) of section 148 (1) and“ informant. ” to any of the officers mentioned in head (b), or to personswho have given information to such officers.
No doubt there is an omission in section 199. The words “ inquirer”.
public servant ” and “ peace officer ” which occur in 148 (1) (6) havebeen omitted. But the words “ officer of a Government Departmentinterested in the ease ” are sufficient to take in an officer in the PoliceDepartment as, undoubtedly, the Police Department i3 one of thedepartments of the Government under the Constitution of Ceylon.
In any event Kande Naide has no right at all to prosecute by himselfor by his pleader Mr. O. M. P. Perera. Kande Naide is neither acomplainant nor an officer. He is only a witness and has therefore noright to conduct the case. On the other hand Sub-Inspector Perera,both as officer who made the written report under 148 (l) (ft) and alsoos an officer of Government Department interested in the case, isentitled to conduct the prosecution. The order of the Magistrate isclearly wrong. Counsel also cited Mendis v. CarUnahamy ; BabiNona v. Wijesinghe * ; Sanmugam PiUai v. Ferdinands $.
//. V. Perera, K.C., with E. if. ll’itranionayatr, K.C., ,Y. M. th Silva.J. A. L. Gooray, II. IP. Jayeuardune, S.J. Kadiryanun, Asoka Obeysekeraand C. E. Jayeuxtrdem, for the complainant respondent.—In The Attorney-General v. Herath Singho (supra) Dias .T. gives what seems to Ik* a verysimple solution of the question that arises for determination in thiscase. He says that the word i! complaint ” has been defined in theCriminal Procedure Code as an allegation, made orally or in writing,to a Magistrate with a view' to his taking action, under the CriminalProcedure Code, that some person lias committed an offence. Hethen says that this definition is wide enough to catch up not only the
(1948) 49 N. L. U. 108.3 (1900) 4 X. L. B. 341.
(1901) 2 Browne 16.* (1926) 29 S. L. /?. 4i.
(1942) 46 .Y. A. 380.
Perera v. Pauiu S uarig
411
complaint under section 148 (1) (a) but also the written report under148 (1) (6) and that, therefore, when proceedings are initiated on awritten report by a police officer, that police officer alone is entitledto conduct the prosecution as complainant under section 199. It willbe seen that Dias J. is of the view that the complainant is the personwho makes the complaint as defined by the Criminal Procedure Code.It is respectfully submitted that though this solution is simple it is notquite correct.
As will be seen from the Criminal Procedure Code the word “ com*plaint” alone is defined and not its derivatives. When one word isdefined singly without reference to derivatives, there is no rule ofconstruction by which it is permissible to give a meaning to a wordsimilar to a word that has been defined, merely because the two wordsare similar. Therefore it is not permissible to hold on the strengthof the definition of the word “ complaint ” that complainant ” is theperson who makes the complaint. Section 148 (1) (o) does not define“ complainant A person who makes a complaint under section148 (1) (a) is undoubtedly a complainant but it does not follow that“ complainant ” means only such person. Indeed there are manysections in the Criminal Procedure Code where the word “ complainant ”occurs and it is obvious that “ complainant ” in those sections does notmean a person who makes a complaint under section 148 (1) (a). Forinstance in section 127 (1) a person who gives information to a policeofficer or to an inquirer relating to the commission of a cognizable offenceis called complainant.
There is no doubt that the question before Court is the interpretationof section 199 of the Criminal Procedure Code.
[Jayetilkke C.J.—Why are the words “ inquirer ”, “ peace officer ”and “public servant” which occur in section 148 (1) (6) left out in
section 199 ?]
Probably deliberately, because those persons who were omitted werenot to be given the right to prosecute.
The clue to the meaning of section 199 is the last word in the section,viz., “ interested The Police have no interest in the case as such.Functions of police officers are defined in section 57 of the Police Ordi-nance (Cap. 43). Conducting of cases is not the function of the police.As a matter of fact it is undesirable that Police should conduct theprosecution in criminal cases. See Police Sergeant Kulaiunye v. Mudali-hamy1 and Webb v. Caickdove3. “ Interest ” in section 199 does notmean the general interest which everybody has in every case. It mustbo ovfh A,n interest as everybody else and every other Department doesnot have in the case. Potioo must have an intoront in the particularcase and not merely the general interest they have in every case. Onlya complainant with an interest as described above has the right toprosecute under section 199. There is no doubt that Kande Naidehas such an interest. Counsel also cited 77th Edition of Stone’s JusticesManual p. 2100 ; Heyzer v. Piloris Hamy3; Scnaratm c. Lenohamy4. 1
1 (1940) 42 N. L. R. 33 at 35.3 {1S83-3)$. C. C. 202.
1 (1886) 3 Times Law Reports 159.* (1917) 20 .Y. L. U. 44.
412
•1AYET1LEKE C.J.—Perea v. l‘aulu Suari*
R. R. Crossette-Thambiak, K.C., Solicitor-General.—The duties ofpolice officers arc set out not only in section 57 blit also in section 72of the Police Ordinance.
[Jayetileke C.J.—Is not section 72 of the Police Ordinance.repealedby sections 148 and 199 of the Criminal Procedure Code 2]
No, the provisions are not in conflict. Section 72 of the Police Ordinancegives the police officers the right to prosecute. Same word is used asin section 199. It is well settled both in England and here that thepolice have a right to prosecute in summary cases. See 22 Cox’s CriminalI/xw Cases 300 ; Duncan v. Toms 1 ; 7th Edition of Chitty’s Statutes p. 702.
Cur. adv. vuU.
July 14, 1950. Jayetileke C.J.—
This application was reserved for consideration by a bench of twoJudges as there are conflicting decisions of this Court on the questionthat has arisen.
On July 19, 1949, Sub-Inspector Perera made a report to the Magistrateunder s. 148 (1) (6) of the Criminal Procedure Code that the accusedhad committed theft of 325 coconuts valued at Rs. 17 belonging toone Kande Xaide. 'The accused appeared on summons and pleadednot guilty to the charge, and the case was fixed for trial. On the dateof trial S. I. Perera stated, that he appeared for the prosecution. Mr.
O.M. P, Perera, Proctor, appeared and stated that he had been retainedby Kande Naido to conduct the prosecution and claimed the right todo so. Sub-Inspector Perera opposed the application ’on the groundthat the prosecution had been initiated by him. The learned Magistrateheld that he was bound by the decision of this Court in De Silva v. TheMagistrate of Gampola2 and allowed Mr. Perera’s application. Thepresent application is made by the Attorney-General to have the saidorder revised.
The question that arises for decision is whether a Police Officer whoinstitutes proceedings in the Magistrate’s Court under s. 148 (1) (b) ofthe Criminal Procedure Code is entitled to appear and conduct theprosecution at the trial. The answer to this question turns on themeaning of the word “ complainant ” in s. 199 of the Code. S. 199 isin these terms—
‘ The Attorney-General, the Solicitor-General, a Crown Counsel ora pleader generally or specially authorised by the Attorney-Generalshall be entitled to appear and conduct the prosecution in any casetried under tins Chapter, but in the absence of the Attorney-Genera),the Solicitor-General, a Crown Counsel, and any such pleader as afore-said, the complainant, or any officer of any Government Department,or any officer of any Municipality, District Council, or Local Boardmay appear in person, or bv pleader, to prosecute in any case in whichsuch complainant or Government Department or Municipality orDistrict Council or Local Board is interested.”
In Grenier v. Perera3 Keuneman J. took the view that the person makinga complaint under s. 148 (I) (u), that the person making a written reportunder s. 148 (1) (6), and that the aggrieved party where a report is made
1 (■/£$?) 5t> Law Times 710.* {IMS) 44 X. L. li. 120.
3 {1911) 42 -V. L. It. 177.
JAYETILEKK 0.J.- ■■/’aero r. Pavla Snarls
413
under s. 148 (1) (6) may be regarded as a complainant. Further thata Police Officer who makes a written report to the Magistrate comeswithin the words “ any officer of any Government Department . . . .in any case in which …. the Government Department . . . .is interested ".
In De Silva v. The Magistrate of Gampola (supra) de Kretser J.disagreed with the view token by Keuneman J. and held that a PoliceOfficer who makes a written report to a Magistrate does not come withinthe words “ complainant ” or “ any officer of any Government Depart-ment ” in s. 199.
In The Attorney-General v. Herath Singho 1 Dias J. disagreed withde Kretser J. and held that a Police Officer who initiates a prosecutionin a summary case is a complainant and is entitled to conduct theprosecution. The word “ complainant ” lias not been defined in theCode but the word “ complaint ” lias been defined thus :—
“ Complaint means the allegation made orally or iu -writing to a Magis-trate with a view to his taking action under this Code thatsome person whether known or unknown has committed anoffence.”
The dictionary meaning of the word “ complaint ’’ is an “ utteranceof grievance ”. But. according to the definition quoted above anutterance of grievance is not- a complaint unless it relates to an offenceand is made to a Magistrate. In Chapter XII which deals with pre-judicial proceedings an utterance of grievance is referred to as informationrelating to the commission of an offence. That would be correct becausethe utterance of grievance is not made to a Magistrate. But in ChaptersXV and XVIII which deal with judicial proceedings the word “com-plaint ” is used in the sense indicated in the interpretation clause. InChapter XII the word “complainant” is used in s. 127 (1) and inChapters XV and XVIII in Sections 148 (1) (a), 189 (3). 195 and 199.
Chapter XII deals with investigation of offences by Police Officersand Inquirers. Section 121 indicates what steps an officer in chargeof a Police Station or an inquirer should take before he commencesan inquiry under Chapter XII. Sub-section (1) provides that everyinformation relating to the commission of a cognizable offence, if givenorally to an officer in charge of a Police Station or to an inquirer, shallbe reduced t-o writing by him or under his direction and be read overto the informant. Sub-section 2 provides that if from informationreceived or otherv>ise an officer in charge of a Police Station or inquirerhas reason to suspect the commission of a cognizable offence, he shallforthwith send a report of the same to the Magistrate's Court havingjurisdiction in respect of such offence, and shall proceed iu person tothe spot to investigate the facts and circumstances of the case. S. 127 (1)provides that if upon an investigation under the Chapter it appears tothe officer in charge of the Police Station or the inquirer that thereis sufficient evidence or reasonable ground as aforesaid, such officeror inquirer shall forward the accused under custody before a Magistrate’sCourt having jurisdiction in the case, or, if the offence is bailable and theaccused is able to give security, shall take such security from him for1 (1948) 49 N. L. B. 108.
414
JAYETILEKE C-J-—Perera v. Paula Stutri*
his appearance before such Court. When an officer in charge of a PoliceStation or an inquirer forwards an accused person before a Magistrate’sCourt or takes security for his appearance, he shall send to such Courtany weapon or other article which it may be necessary to produce beforesuch Court and shall require the complainant (if any) and so many ofthe persons who appear to such officer or inquirer to be acquainted withthe circumstances of the case as he may think necessary to execute abond to appear before such Magistrate’s Court therein named and giveevidence in the matter of the charge against the accused. When s. 127is read with s. 121 it seems to 1)6 fairly clear that the word “ complainant ”in Section 127 refers to the informant in Section 121. The words “ ifany ” have been used with reference to the words “ or otherwise ” inSection 121 (2).
Chapter XV deals with the commencement of proceedings beforea Magistrate's Court. S. 148 (1) provides that proceedings in a Magistrate’sCourt shall be instituted in one of the following ways :—
(а)on a complaint being made orally or in writing to a Magistrate of
such court that an offence has been committed which suchCourt has jurisdiction either to inquire into or try : Providedthat such a complaint if in writing shall be drawn and counter-signed by a pleader and signed by the complainant.
(б)on a written report to the like effect being made to a Magistrate
of such court by an inquirer under Chapter XII or by a peaceofficer or a public servant or a Municipal servant or a servantof a District Council or a servant of a local Board.
(c) upon the knowledge or suspicion of a Magistrate of such courtto the like effect: Provided that when proceedings arc institutedunder this paragraph the accused or when there are severalpersons accused any one of them, shall be entitled to requirethat the case shall not be tried by the Magistrate upon whoseknowledge or suspicion the proceedings were instituted, butshall either be tried by another Magistrate or committed fortrial.
(rf) on any person being brought before a Magistrate of such courtin custody without process, accused of having committed anoffence which such court has jurisdiction either to inquireinto or try.
upon a warrant under the hand of the Attorney-General requiringa Magistrate of such Court to hold an inquiry in respect of anoffence which such court has jurisdiction to inquire into.
(/) on a written complaint made by a court under s. 147.
The complaint under s. 148 (1) (a) can be made by the aggrieved personor any one else. Suppose A sees B assaulting C when he is going alongthe road it is open to A to make a complaint to a Magistrate against Bunder s. 148 (1) (a). The person who makes the complaint is calledthe complainant in the sub-section. S. 196 refers to a case institutedunder sub-sections (c) and {d) as one instituted on a “ complaint ”.The words in s. 148 (1) (6) arc on a written report “ to the tike effect ”,that is to sa}', on a written report to such Magistrate alleging that anoffence has been committed which such Court has jurisdiction either
JAYETTLEKE C.J.—Pertrnr. 1‘aulu Suaria
415
to inquire into or try. To my mind there is no difference between acomplaint made under sub-sections (a), (c) and (d) and a written reportro a Magistrate by any of the persons referred to in s. 148 (1) (6). Iam of opinion that a written report marie to a Magistrate under s. 148(I) (6) is a complaint. If a person who makes a complaint under s. 148(1) (q) can be regarded as a complainant I see no reason why a personwho makes a eomplaint under s. 148 1) (6) should not also be regardedas a complainant.
S. 150 (1) says that whore the offence alleged in any proceedings insti-tuted under s. 148 (1) (a) or s. 148 (1) (5) is an indictable one the Magis-trate may examine on oath the complainant or informant and anyother person who may appear to the Magistrate to be able to speak tothe facts of the ease.
In Thomas v. Cornells 1 Browne J. said—
“ For my own part I would consider that in s. 149 (1) * complain-ant ’ relates to head (a) of s. 148 (1) and ‘ informant ’ to any of the
officers mentioned in head (ft) or to tlic person whom they report to
have given them the information.”
With great respect I am unable to place upon the words “ complainant ”and “ informant ” the restricted meaning the learned Judge has placedupon them. The language of s. 148 (1) (a) is wide enough to enablea person who knows nothing about the facts of a ease to make a complaintto a Magistrate. For instance the proprietor of an estate will be entitledto make a complaint against ft person for theft on information givento him by the superintendent. According to s. 148 (1) (a) the proprietorwill be the complainant, [ can think of no other word by which thesuperintendent can be more accurately described than the word “infor-mant ”. Under s. 150 (1) it will be open to the Magistrate to examineon oath the proprietor or the superintendent or any other person who canspeak to the facts of the case. I do not think there is any justificationfor limiting the word “ complainant ” in s. 150 (1) to the person whomakes a complaint under s. 148 (1) (a) and the word “ informant ” tothe person who makes a written report under s. 148 (1) (6). I am ofopinion that the said words are applicable to both sub-sections. Theword “ complainant ” next occurs in Chapter XVIII which lays downthe procedure for the trial of cases triable summarily by a Magistrate.8. 189 (1) (3) says that the complainant and aooused or their respectivepleaders shall be entitled to open their respective cases but the complain-ant or his pfeadcr shall not be entitled to make any Observations in replyupon the evidence given by or on bohalf of the accused. According toMr. Perera’s argument the complainant referred to in this section andin s. 199 is the aggrieved party. If Mr. Perera’s argument is correctthere will be five complainants if a person causes hurt to five personsin the course of the same transaction and a Police Officer institutesproceedings under s. 148 (I) (6). It seems to me that the word “ complain-ant ” in those two sections must be taken to be the person who madethe complaint under s. 148 (1) and initiated the proceedings whichnecessitated the trial. The words “ inquirer ” and “ peace officer ”
1 {1901) 2 Browne 16.
411)
Allen v. Allen
which appear in s. 148 (1) b) have been omitted in s. 199 because theycome within the word “complainant”. The words “any officer ofany Government Department, or any officer of any Municipality,District Council or Local Board ” in h. 199 have, I think, been insertedin order to give an officer other than the officer who made the writtenreport under s. 14S (1) (6) the right to appear and conduct the prosecution.For instance if the written report under s. 148 (1) (b) was made by theDeputy Collec tor of Customs it will be open to the Collector of Customsto appear and conduct the prosecution in any case in which the CustomsDepartment is interested. Mr. Perera said that he could not arguethat a police officer is not an officer of a Government Department. Withgreat respect 1 am unable to agree with de Kretser J. that a Police Officeris not a member of a department. The Police Department is one ofthe departments of Government. The words “ any officer of a GovernmentDepartment" would entitle any police officer to appear and conductthe prosecution in a case instituted by a peace officer under s. 148 (l) (6).
I am of opinion that the order made by the learned Magistrate iswrong. I would, accordingly, set it aside.
Swan J.—I agree.
Order set aside.
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