059-NLR-NLR-V-03-SEDIRIS-v.-JUDRIS-et-al.pdf
( 125 )
SEDRIS v. JUDRIS et al.P. C., Balapitiya, 13,854.
Penal Code, ss. 333, 314, and 208—Criminal Procedure Code, 88. 45 and156—Irregularity—Duty of Magistrate on receiving complaintcharging accused with offences triable summarily and by indictment—Procedure before summons is issued—Summons by whom to besigned.
It is the duty of a Police Magistrate to whom a written complaint ispresented charging accused with two offences, one of which is triableby him summarily and the other not so triable, to examine thecomplainant thereon and reduce such examination to writing, whichafter being read over to the complainant, should be signed by himand the Magistrate. Such examination should be made at once,and the complainant’s story should be tested by the Magistratebefore he has had time to concoct a story or an opportunity ofconsulting with other persons who may, for reasons of their own,be desirous of getting him to make additions to his story.
If the Magistrate, after examining the complainant, is of opinionthat there are no sufficient grounds for proceeding further with thecase, he may refuse to issue process, or, if the accused is in custody,he may discharge him.
1895.
July 10.
( 126 )
1896.
July 10.
Summons requiring the attendance of a person accused before aPolice Magistrate could only be signed by the Magistrate or thechief clerk of his Court, and no person can sign a summons for thechief clerk, and no person is bound to obey a summons signed byanother for the chief clerk.
A person who has reasonable grounds for believing another tohave committed a burglary is justified in tying him up until hecould be handed over to a police officer.
' 9 'HE facts of this case are fully set forth in the following-1- judgment.
Domhorat, for appellants.
10th July, 1895. Bonser, C.J.—
In this case the defendants appeal from a conviction of Mr.Woutersz, Acting Police Magistrate of Balapitiya. He has con-victed the appellants of having committed an offence under section333 of the Penal Code, in wrongfully tying up and confining thecomplainant; and further, of an offence under section 314, involuntarily causing hurt to him. He has sentenced the first andsecond appellants to undergo six months’ rigorous imprisonment,and required the third and fourth appellants to give security forgood behaviour.
There appears to have been considerable irregularity in the wayin which this case was conducted. On the 21st March, 1895, thecomplainant presented a written complaint to the Magistrate atthe Police Court complaining that the accused had on that day, atPeraliya, voluntarily caused hurt to him by beating and assaultinghim and by tying his hands, an offence punishable under section314 of the Penal Code; and further complaining that on the dayand at the place aforesaid, and at the same time, the accuseddelivered the complainant into the custody of the Arachchi ofTelwatta on a false charge of house-breaking by night, i.e., anoffence punishable under section 208 of the Penal Code.
The first offence is one which the Magistrate had jurisdiction totry summarily, the second offence is one which he has no juris-diction to try summarily. Now, it was the duty of the Magistrate,on receiving the complaint, to examine the complainant. Thatduty is prescribed by section 156 of the Criminal Procedure Code.
The statement made by the complainant on such examinationis to be reduced to writing, and, after being read over to the com-plainant, is to be signed by him and the Magistrate. If theMagistrate, after examining the complainant, is of opinion thatthere are no sufficient grounds for proceeding further with thecase, he may refuse to issue process, or if the accused is in custody,
{ 127 )
he may discharge him. In my opinion this preliminary evidenceis almost the most important proceeding in the whole of the inquiry.It is obvious that it should be taken at once, and that the com-plainant’s story should be tested by the Magistrate before he hashad time to concoct a story or an opportunity of consulting withother persons who may, for reasons of their own, be desirous ofgetting him to make additions to his story. A few judiciousquestions put by the Magistrate at this stage would often suffice todispose of the case.
Unfortunately in the present case the course laid down by lawwas not taken. The Magistrate merely endorsed on the plaint“ Summons on stamp, 27-3-95,” which endorsement, I presume,was meant as an authority to the chief clerk of the Court to issue asummons requiring the attendance of the accused on the 27th March,1895, to answer the matter charged in the complaint. I regret tosee that the Penal Code allows summons to be signed by any onebesides the Police Magistrate. Section 45 does allow them to besigned by the chief clerk.
At this stage another irregularity occurs. A summons is issuedand signed, not by the chief clerk, but by somebody whose nameis illegible, and who records that he signs “ for the chief clerk.”It is needless to say that no one was obliged to pay the slightestattention to it.
However, the parties did appear on the summons, but thesummons, it should be noted, was not the summons directed bythe Police Magistrate to be issued. He directed a summons to beissued on the complaint. The summons issued had referenceonly to, one of the charges, that of voluntarily causing hurt. Theparties were all present on the 27th March, but even then theMagistrate did not examine the complainant. He postponed theCase to 23rd April, anji on that day it was postponed again, andagain postponed,—possibly necessarily postponed for want oftime on the part of the Magistrate. The result was that the casewas not heard for more than one month after the charge had beenmade, i.e., on the 24th April.
On that occasion the complainant, for the first time, states thefacts. The complaint did not, as it should, contain any statementof facts. It is merely a formal charge, on which the Magistrateought never to have issued a summons.
[And on the merits of the case his Lordship reviewed the evidenceat length, and concluded as follows :—]
Under all these circumstances I think that there are grave doubtsas to the truth of the story told by the complainant, and that theMagistrate ought not to have convicted.
1895.July 10.
Bonskb, C. J.