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COURT OF APPEALRomulis FernandoVs.Officer in Charge of Marawila Police Station
C.A. No 365/78 — MC. Marawila 43757
Administration of Justice Law sections 162, 163, 166; Accused produced beforeMagistrate without process; Does failure to record evidence hy Magistrate beforecharging accused vitiate subsequent proceedings?.
Accused-appellant was produced before the Magistrate on 12.10.77 and was bailedout. On 17.10.77 Inspector of Police Marawila filed a report in the Magistrate’sCourt while the accused was also present in Court.
Counsel argued that the subsequent proceedings were vitiated by the Magistrate'sfailure to record evidence before charging accused.
Held 1) When accused was produced on 12.10.77 he was produced in the courseof investigation.
Proceedings were instituted against the accused only when Inspectorof Police Marawila filed a report under section 163 (1) of the AJL on whichday accused was present in Court.
There was no requirement that the Magistrate should record evidencebefore charging accused.
APPEAL from the order of the Magistrate of Marawila
Argued on:Decided on:
Tambiah.J& L.H.de Alwis, J..
J .C.T. Kotalawela for the appellant.
Anura Haddagoda, State Counsel for theAttorney-General.
18.3.1982Cur. adv. vull.
The appellant who was the first accused in this case along withhis son, who was the 2nd accused, were charged with causing mischiefby setting fire to the house of one Mary Theresa Fernando andcausing damage to the extent of Rs. 300/-, an offence punishableunder section 419 read with section 32 of the Penal Code. At the
Hontulis I'rnuinilt> i>. OIC Mur,twilit Vtilirc Station tl.,11. </<• Alwis. J.)401
conclusion of the evidence for the prosecution the 2nd accused wasacquitted. The appellant's defence was that of an alibi and at theconclusion of the trial, he was convicted and sentenced to ft months'rigorous imprisonment, now appeals from his conviction andsentence.
The ease for the prosecution consisted of the evidence of MaryTheresa Fernando, and her daughter Srimathie. Marv Theresa statedthat on the day in question at about 10 or 10.30 p.m when she wasin her house with her daughter, the first accused came into theircompound and ordered them to get out of the house saying that hewas going to set fire .to it. He had been uttering this threat frontmorning that day. He had a chulu light and held it to the thatchedroof which caught fire. The house was made of wattle and daub.Mary Theresa Fernando stated that she raised cries and her neighboursrushed up and helped her to remove her belongings from the housebefore it burned down.
Mary Theresa Fernando's evidence is corroborated by that of herdaughter Srimathie. The appellant lives about 50 yards away and themotive suggested was that he wanted to grab Mary Theresa Fernando'sland by driving her out of it.
The motive suggested by the appellant was that a proposal of amarriage was made by his son to Mary Theresa s daughter whichwas turned down and that was the reason for Mary Theresa to makethis false complaint against them. Both Mary Theresa and her daughterdenied the proposal of marriage and if anyone should have takenoffence over the rejection of the marriage proposal it was the appellantand his son and not Mary Theresa. Moreover it is most unlikelythat Mary Theresa would have burnt down her own house in orderto falsely implicate the appellant.
The incident is alleged to have occurred on 24th July 1977 andthe appellant surrendered to the Police about 3 weeks later, on 12.8. 77.
This incident occurred during the period of the last GeneralFlections and the Inspector of Police was busy and unable to visitthe scene and make investigations till the 28th July 1977. He testifiedto the fact that the whole house had been burnt down except forthe mud walls and estimated the damage at about Rs. 500/-.
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The! appellant gave evidence and took up the plea of an alibi. Hesaid that on thb day in question he was working at Parakrama TileFactory1 as a wateher-underUHc owner. Wilfred Peiris, and calledWilfred Peiris to supportt hmv. 'But far from doing so. Wilfred Peirishas contradicted him on vital matters, as a result of which the learnedMagistrate has rejected the appellant’s defence. He has accepted theevidence of the virt' al complainant, which was corroborated by thatof her daughter's drid he found the appellant guilty of the charge.
Learned Counsel who appeared for the 'appellant submitted thatthere were several contradictions' in the evidence of Mary Theresawhich have not been considered by the learned'Magistrate. One ofthe contradictions he pointed out wlasThat at ’the trial Mary Theresasaid that only the .appellant entered'her compound* while the 2ndaccused stood outside on the road whereas the report filed by thePolice^ on 12.8.77 attributed to the complainant the statement thatboth the appellant and his son came into the compound. This isonly a report and consists of a summary of the statement that thevirtual complainant had made to the Police. It may not be an accuratereproduction of* her complaint. If it vVas sought to contradict MaryTheresa ori this point, it could easily have been done by confrontingher with her statement to the Police, when she was in the witnessbox. As the report contained only a paraphrase of her statement, Ido not think it can be said to amount to a contradiction of her evidence.
The next contradictibn "sought to be relied on is that Mary Theresasaid that the appellantheld the1 chulu light tothe frontportionof
the house whereas herdaughter said that theappellantset fireto
the roof of the houseand threw the chulu light on toit. Thisis
hardly a contradictionas1 Mary . Theresa maynot havewaitedto
watch the throwing of the chulu light onto the roof, being more'concerned with saving her belongings.
The other contradiction related to a statement alleged to havebeen made by Mary Theresa to the Police to the effect that herdaughter had not seen the incident. Mary Theresa denied that shemade such a statement and said that if the certified copy of itcontained it, it would be wrong. If indeed there was such a contradictionin her statement made to the Police, it could very well have beenproduced and marked in evidence. But; this >was not done. On thecontrary even when her daughter gave evidence, this suggestion wasnot put to her in cross examination.
CA Komulix Fernando r. OfC Mttrawiia Police Station ll..11. dc Ahvix. J.)403
Counsel next submitted that the learned Magistrate erroneouslyput the burden on the accused of proving his innocence by establishinghis alibi. 1 do not think that is so. The learned. Magistrate has dealtwith the evidence of the appellant and his witness and in view Ofthe material contradictions in their evidence .he has rejected the-defence of an alibi, lie has accepted the evidence of the virtualcomplainant and ,hcr, daughter. But this docs not mean that he.accepted their evidence,because he was influenced by the contradictionsin the appellant's defence, as was submitted by learned Counsel. Isec no reason to disturb the finding of the learned Magistrate on the facts.
Learned Counsel also raised a point of law. These proceedingstwere instituted under the Administration of Justice .Law. ;No. 44 of’1973. Learned Counsel for the appellant submitted that when the :appellant was first brought before the Magistrate in custody on 12.8,77without process it was in terms of section 163(1 )(c). and under section162(2)(b) read with section 166(1) the Magistrate was required torecord evidence before framing a charge against the appellant.Admittedly no evidence was recorded before the appellant was charged.
The learned Magistrate purported to assume jurisdiction as DistrictJudge in order to try the offence which was one triable by a DistrictCourt. But that was unnecessary because section 31 of the Administration!of Justice Law defining the criminal jurisdiction of the Magistrate's-'Court had been amended by Law Nov 31 .of 1975 which gave theMagistrate Jurisdiction to try offences under section 419 of the,PenalCode. Counsel for the appellant made no point of this. His sole-'contention was that the Magistrate should have recorded evidencebefore charging the accused. He, relied on the case of J unaid Kv. -Inspector of Police. Ambalangoda, 66 CLW 69 which held that where =an accused person is produced before the Magistrate otherwise thanon summons or warrant, it is incumbent on the Magistrate to examineon oath the person so producing him forthwith – that is.' on the.same day. Failure to do so vitiates the subsequent proceedings. Inanother case relied upon by learned Counsel. Wadi vein Lx.Kanagaratnam, 66 CLW 16. it was held that where an accused isbrought, before Court.in custody, without process, the failure, of theMagistrate to examine the Police Officer so producing him. on thesame day. constitutes a failure to hold the .examination.directed by.section 151(2) of . the Criminal. Procedure Code and vitiates thesubsequent proceedings. Counsel also cited the case of Tikiri Banda
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Vs. Perimpanayagam, 61 NLR 286, where it was held that where anaccused person is brought before a Magistrate's Court otherwise thanon summons or warrant, the requirement of section 187(1) read withsection 151(2) of the Criminal Procedure Code that the Court shouldexamine on oath a person or persons able to speak to the facts ofthe case excludes hearsay statements being acted upon. In such acase, therefore, it would be a fatal irregularity if the Magistrateframes a charge solely upon the statement on oath of a Police Officerwho' speaks only of information received by him from other personsof the' commission of an offence by the accused.
In the instant case however the appellant was first produced beforethe Magistrate without process under section 75(1) of the Administrationof Justice Law and bailed out. Subsequently on 17.10.77 a reportunder section 163 (1 )(b) was filed and he was charged withoutevidence being recorded by the Magistrate. The question is whetherthis was illegal and rendered the subsequent proceedings void assubmitted by the learned' Cotinsel for the appellant.
In Wadivelu's case (supra) as in the present case the written reportunder section 148( 1 )(b) of the old Criminal Procedure Code whichcorresponds with section 163(1 )(b) of the Administration of JusticeLaw was filed in Court sometime after the accused had first beenproduced before the Magistrate in custody without process. It washeld in Wadivelu’s case that proceedings in the Magistrate’s Courthad been instituted under section 148(l)(d) when the accused wasfirst produced in custody without process and that the failure of theMagistrate on that occasion to examine the Police Constable whoproduced him constituted a failure to hold the examination directedby section 151(2) and therefore vitiated the subsequent proceedings.But in my view Wadivelu’s case is distinguishable from the presentcase, where the production of the appellant on the first occasion i.e.on 12.8.77, was in the course of investigations conducted undersection 75( 1) of the Administration of Justice Law and that does notamount to an institution of proceedings in the Magistrate’s Court interms of section 163(1) (c) of the Administration of Justice Law.
A comparison of the corresponding sections relating to theinvestigation of offences in the old Criminal Procedure Code and inthe Administration of Justice Law discloses a significant difference.Section 126 A(l) of the Criminal Procedure Code provides that
CA Roninlis Fernando r. OK Marawila Police Station tl.,11. de AMs. ./.I405
whenever the investigation cannot be completed within a period of24 hours, the Officcr-in-charge of the Police Station must forthwithtransmit a report to the Magistrate and at the same time forwardthe accused to such Magistrate. (The emphasis is mine). On theother hand, section 75(1) of the Administration of Justice I,awprovides that in a similar situation the Police Officer in charge ofthe investigation shall forthwith transmit a report to the Magistrateand at the same time send the suspect before the Magistrate. (Theemphasis is mine). The reference to the accused in the one case andto the suspect in the other is an important distinction. Section 148(1)
of the Old Criminal Procedure Code and the correspondingsection 163(1) (c) of the Administration of Justice Law both makethe bringing of a person before the Magistrate, in custody withoutprocess accused of having committed an offence one of the ways inwhich proceedings in a Magistrate's Court shall be instituted. But ashas been pointed out the person who is produced in custody withoutprocess before the Magistrate in the course of investigations undeisection 75(1) of the Administration of Justice Law is a ‘suspect’ andnot an ‘accused’, so that his production at that stage docs not amountto an institution of proceedings in the Magistrate's Court undersection 163(1) (c). A ‘suspect’ becomes a person accused of havingcommitted an offence only when the Police having completed theirinvestigations have made a report to Court under section 163(1) (b)of the Administration of Justice Law. It is only when report is filedthat proceedings arc instituted in a Magistrate’s Court.
In the instant case I am of opinion that proceedings were firstinstituted in the Magistrate's Court, when the Inspector of MarawilaPolice Station filed a report in the Magistrate’s Court under section163(1) (b) of the Administration of Justice Law 17.10.77. on whichday the appellant was also present having previously been bailed outto appear in Court on that day.
It is now settled law that where proceedings in a Magistrate’sCourt are instituted on a written report made under section 148(l)(b)of the Criminal Procedure Code which corresponds with sectionI63(l)(b) of the Administration of Justice Law. and the accused isat the same time brought before the Court in custody without processit is not necessary for the Magistrate to record any evidence beforehe charges the accused. This is a decision of a Divisional Bench of5 Judges of the- Supreme Court, in the case of Perera Vs. S./.,Police, Marawila. 67 NLR 125.
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“The word ‘brought’ in that section does not mean broughtby a Police Officer, but compelled to attend either by virtueof the fact that he is in Police custody and is forwarded toCourt or is accompanied by a Police Officer or is compelledto attend by virtue of having executed a bail bond undersection 126 A dr section 127” – Per Basnayake, C.J., inMohideen Vs. Inspector of Police, Pettah – 59 N LR 217, at 219.
The fact that the accused was present in Court at the same timewhen' the written report is filed makes no difference and does notconvert the institution of proceedings under section 148(1 )(b) intoproceedings instituted under section 148(1 )(d) which corresponds withsection 163(1 )(c) of the Administration of Justice Law. Sansoni, C.J.,in the Divisional Bench case said –
“proceedings which have been instituted in one of the six waysdo not change their character merely because there is presentsome additional circumstance which might also be present inthe case of proceedings instituted in another way.” 1
1 am therefore of the view that there was no legal requirementfor the Magistrate to record evidence before charging the accusedin the instant case. The submission of learned Counsel for. theappellant must therefore Jail.
I accordingly dismiss the appeal.
TAMBIAH, J., — 1 agree.Appeal dismissed
Romulis Fernando Vs. Officer in Charge of marawila Police Station