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Present: Garvin J.
SUB-IN SPECTOR. PADUKKA, v. PEBEBA.
106—P. C. Avissairella, 12,636.
Charge—Reading the charge from the report—Offence punishable withRe. 100 for second offence—Criminal Procedure Code, ss. 148 (J) It)and 187.
Whore a person is charged with .an offence which is punishablein certain circumstances with a fine not exceeding Bs. 100it is not competent to a Magistrate, in lieu of framing a charge,to adopt the alternative course of reading the report as a chargeunder section 148 (1) (t).
PPEAL from a conviction by the Police Magistrate of Avissa-
**• wella; Accused was charged with having committed anoffence against the provisions of sections 27 (1) and 32 of the MotorBy-laws, an offence punishable with a fine not exceeding Rs. 50.and in the case of a second or subsequent offence with a hue notexceeding Rs. 100. The proceedings commenced with a reportfrom the Sub-Inspector of Police. The accused appeared in'Courton the summons returnable date, but there was no return to thesummons. The Magistrate read the report: to the accused and tookhis plea.
Basnayalte, for acousted, appellant.
December 9, 1926. Gauvix J.—
In this case the proceedings started with a report nv the Sub-Inspector of Police under the provisions of section 148 (1) (6)of the Criminal Procedure Code. It was alleged that the accusedhad committed an offence against the provisions of sections 32and 27 (1) of the Motor By-laws. Summons was issued. Theaccused appeared in Court on the summons returnable date, butthere was no return to the summons. The Police Magistrateread the report upon which these proceedings were initiated to theaccused and took his plea t hereon. It is contended for the appellantthat the ommission on the part of the Police Magistrate to framea charge is fatal to this conviction. The provisions of section 187of the Criminal Procedure Code enact that where an accused appearsin Court in cases instituted on a written report under section 148 (1)(i>), which discloses an offence punishable with not more than threemonths’ imprisonment or a tine of Rs. 50, it shall be lawful to theMagistrate to read such charge to the accused from the report.The punishment for an offence against the by-laws framed under
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CrA&vxx j Ordinanee No. 4 of 1916 is prescribed by section 34 of these by-laws.
" Every person committing a breach of these by-laws is liable to a
fine not exceeding R$. 50, bat in the case of a second or subsequentv. Perfra* offence he renders himself liable to be punished with a fine notexceeding Rs. 100. It is argued that in these circumstancesit is not possible to say that the offences which the accused com-mitted are offences which are punishable “ with not more thana fine of Rs. 50.” This contention is entitled to prevail. Thereare two maxima up to which a person charged with an offenceunder these by-laws may be. punished according as it is the firstor second or subsequent offence. In each case the offence is anoffence against the by-laws, and it is that offence which is punishablein certain circumstances with a fine up to a maximum of Rs. 100.It is obvious that at the time of the institution of the charge theMagistrate does not, and cannot, know whether it is a first or asecond offence, but what- he does know is that is is an offence inrespect of which the punishment which lie is empowered to inflictmay extend to a fine of Rs. 100 if in point- of fact it so happens thatthe person charged had been previously convicted of an offenceagainst jthese by-laws. This is not, therefore, a tease in whichit was competent for the Police Magistrate in lieu of framing acharge to adopt the alternative course of reading the report madeunder section 148 (1) (b). It. has been held in Ebert t>. Perera 1that a conviction obtained in circumstances such as this cannotstand.
I would therefore quash the conviction and send the case backfor further proceedings.
I wish to draw the attention of the Magistrate to the evidenceled in the case to identify the accused as the person who drovethe. car on the day in question. Without expressing any opiniona*s to the sufficiency of the evidence, I would merely observe thatit is extremely scanty and should, if possible, be supplemented.
Set aside and sent bach.
AT. L. R. &02-
SUB- INSPECTOR . PADUKKA, v. PERERA