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Present: Pereira J.
PERIS, v. GUNASEKERA..
672—P. C. Colombo, 47,815..
.Charge—Omissionincharge—Curableirregularity—Evidence . that. a
person " publishes ” a newspaper—Evidence that he “ dwtribu'es "a newspaper.
The total absence of a charge or its equivalent in a summary.trial in the Police Court is a fatal illegality, but a mere omission init is a curable irregularity, unless it has occasioned a failure ofjustice. And so, ' when in a prosecution against a person forprinting for sale and distributing an obscene paper, the obscenematter relied on was not, as it should have been, set forth iu the 'charge, and it appeared that the accused had taken no objectionon that score in the Court below, the Supreme Court refused ..tointerfere with the conviction.
The evidence that an accused party “ publishes " a newsuaDeris sufficient evidence that he “ distributes " it.
fJlHE facts are set out m the judgment.
Bawa, K.C., and B. L. Pereira, for accused, appellant.
Bertram, K.C., A.-G., van Langenberg, K.C., S.-G., and V. M.Fernando, C.G., for respondent.
Cut. adv. vult
August 24, 1914. Pereira J.—
Before arguing this . case on – the evidence, the counsel for theappellant took exception to the conviction on the ground that nocharge, had been. framed against the accused. This is a case ,-inwhich-; the accused – appeared on a summons', and the Magistrateappears to have acted under sub-section (2) of section 187; of theCriminal Procedure Code, and to have explained to the accusedthe particulars of the offence contained in the summons. On this'being pointed out to the learned counsel, he took the objection thatthe obscene words taken exception to by the prosecution were notspecifically set forth in the summons, and he cited divers judgmentsof the English and the Indian Courts to the effect that in a prosecu-tion like'this it is essential that the actual words taken exceptionto as . obscene should be .made a part of the charge. There is little.doubt that the' charge as; set forth in the summons is defectiveowing to the omission pointed out by the learned counsel, but, then,rthe:.question is whether the case is not covered by the provision of
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section 425 of the Criminal Procedure Code. It has been held bythis Court that the total absence o£ a charge is not* a mere irregularityto which .the provision of section 426 would 'apply, but a fatalillegality (ChinewardemPokier Lebbe1); but the same cannot be
said of a mere omission in a charge.. ,That may clearly be regardedas an irregularity curable by section 425, because- that sectipnexpressly enacts that no judgment, shall be reversed-or altered, onaccount of any omission in the charge, unless such -omission hasoccasioned a failure of justice. The question thus resolves itselfinto this. Has the omission mentioned.above in the charge se.t fortVin the. summons in the present case occasioned a .failure of justice?I find no difficulty in answering this, question. The accused wa$charged with having printed for sale and distributed an obscepepaper. The obscene matter was referred to 86 the article in theissue of the Sinhalese newspaper known as the 7 Sinhala Baudhaya.7of the 3rd May last headed “ Denagathyuttu Karuna. •” That cerTtainly was too general a description of the alleged obscene matter;but the accused, who was represented by counsel, took no objectionto the charge. The presumption is that he knew well what theobscene matter referred- to . was. The fact that the accused tpok.noobjection to the charge, in the. court. below has a bearing on. fchp-question as to whether he was prejudiced by the omission to setforth in the charge the obscene matter complained of, – In the caseof The Queen v. Appuwa? cited for some inexplicable reason bythe appellant’s counsel, this Court held in effect that .the absenceof objection by the accused to the indictment or charge: was; anindication that the accused was not prejudiced by any ..omission-init, and that to such a case section .200 of the old Criminal ProcedureCode (corresponding to section 425 of the – present Code) applied.Moreover, in the present case the Police Inspector swore that- thewords relied on as obscene and indecent were those in passage. AB*and the accused led evidence to controvert the contention that thatparticular passage (A B) was obscene. It, is obvious .that- theaccused was not prejudiced by the omission referred to, and I. .dpnot think that the appellant is entitled to. succeed* on his objectionto the charge.
It has then been argued that there is no evidence that the accusedtt distributed ” the paper referred to in.it. There is direct evidencein the:.case that the accused is .the printer and;-publisher of’thenewspaper in question,, and in the accused’s own statutory.declara-tion marked C he declares that he is the printer and publisher’of.the paper. It has not been contended that the accused' did" notprint the paper: for sale:: ToLpublish-a paper;..means surely nothingless than to distribute i.t. The omission of the- word publishes”in section 285 of the Penal Code is apparently due to. the use in. it ofthe word.distributes.” The prosecution, by the evidence referred
HWU) 25 N. L. F. 183.
:2 (1896) 2 N. L. F. 6.
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to above, has clearly made out a frima fame case of distribution,.itn^ that case has not been rebutted by the oath of the accused.This would have been the best evidence in rebuttal of the fact, buthe has not! ventured to get into the witness box to give that evidence.
Now, the main question in .the case is whether the issue of thenewspaper referred to in the summons can be said to be an obscenepaper. Of course, as held in the case of Empress of India v. Inder-man,1 a book (the finding'applies to a paper as well) may be obscenewithin the meaning of the Penal Code, although it contains but asingle obscene passage. The passage alleged to be obscene in thepaper in question is that marked A B. In my opinion thore islittle doubt that this passage is obscene and indecent. The state-ment of the Sinhalese scholars called as witnesses for the defencethat there is nothing objectionable in the language used in thispassage to convey what in their opinion was the inspiring andelevatng instruction intended to be conveyed is, I am afraid, anunworthy reflection on the Sinhalese language, which is so repletewith words and phrases with different shades of meaning that itreadily responds to calls for the most accurate expression of thoughtsand ideas. After a careful consideration of the evidence of thesewitnesses, I cannot help thinking that they have simply lent tneirlearning and talent to help the accused out of the unpleasantsituation in which he found himself. I shall take one Instance toillustrate my meaning. The expression “ para suddha ” has beentranslated by them by the words 44 foreign white man. ” Of course,there is nothing obscene in this expression, but I take it as illustratingthe methods of interpretation resorted .to by the witnesses for thedefence. There is no excuse for saying that 44 white man*' is acorrect rendering of 44 suddha. ” As regards 44 para, 'r it is quite truethat the word admits of the meaning 44 foreign, 9r but I am in entireagreement with Mudaliyar Weerakody in thinking that the meaningthat will be attributed to the whole expression by ordinaryreader of a newspaper would be. “ the white pariah. "" This, as Ihave observed already, is merely illustrative of the methods adoptedby the witnesses for the defence in translating .the obscene partsalso of the passage. I agree with the Magistrate that MudaliyarsGoonewardene and Weerakody are more reliable witnesses thanthose for the defence, and there can be no question that theimpeached passage as interpreted by them (it is not necessary thatI should cite it here) contains matter that is filthyr indecent, andobscene, appealing to improper instincts and thoughts, and calculated(possibly not intended) to shock decent-minded persons and outragetheir sensibilities, and to deprave and corrupt those whose mindsare open to immoral influences.
I affirm the conviction and sentence.
» /. L. R. 3 All. 837.
PERIS v. GUNASEKERA