Santhosan Nadar r. Attorney-General
1978 Present: Malcolm Perera, J. and Tittawella, J.
T.SANTHOSAN NADAR, Third Accused-AppellantLEELAWATHIE WIJESINGE, Claimant-Appellant
THE ATTORNEY-GENERAL, Respondent
S.C. 354-355/76—M.C. Chilaw 48346
Administration of Justice Law, No. 44 of 1073, section 1GG(1)—Accusedbrought to Court otherwise than on a summons or warrant—.Failure by Magistrate to frame charge—Whether defect curable.
MALCOLM PERERA, J.—Santhasan Nadar v. Attorney-General
Where an accused is brought before a Magistrate’s Court other-wise than on a summons or warrant it is mandatory that a chargeshould be framed by the Magistrate. The failure to do so cannot be.cured.
Case referred to :
Ebert v. Perera, 23 N.L.R. 212.
PP-EAJL from an order of the Magistrate’s Court, Chilaw.
V. S. A. Pullenayagam, with S. Gunasekera and' G. Balasubra~-maniam, for the 3rd accused-appellant.
H. W. Jayewardene, Q.C., with M. Kangasunderam, for the-owner of the car.
Cur. adv. vult.
August 18, 1978. Malcolm Perera, J.
The 3rd accused-appellant and two others were charged in the-Magistrate’s Court of Chilaw, with having on 13.12.75, harbouredand transported in car bearing distinctive No. 1 Sri 5507 threepersons named R. Pandi Nadar, N. Mahalingam Nadar and P.Ponraj, whom they knew had illegally entered into Sri Lanka,in breach of sections 9 and 10 read with section 15, Chapter 351,and thereby committed an offence punishable under section 45-A (1) (b) of Chapter 351 as amended by.section 5 of Act No. 63of 1961.
After trial the learned Magistrate acquitted the 2nd accused.He however convicted the 1st accused and the 3rd accused–appellant. The 1st accused was sentenced to a term of 2 years’rigorous imprisonment suspended for 5 years and was also-ordered to pay a sum of Rs. 3,000 as State costs. The 3rdaccused-appellant was sentenced to a term of 2 years’ rigorousimprisonment.
According to the prosecution version, on receipt of certaininformation a police party led by Inspector Ratnayake, proceededto the Deduru-Oya bridge on 13.12.75 and waited in ambush*At about 5.20 p.m. car bearing No. 1 Sri 5507 came from thedirection of Puttalam. On the signal of the police party, the carwas brought to a halt. The 2nd accused who was acquitted was atthe driving wheel, and the 1st accused was seated on the seatnext to the driver’s seat. In the rear seat sat the appellanttogether with the alleged illegal immigrants.
The six persons were taken into custody and brought to thepolice station. On 14.12.75 the three accused were remanded. Theother three ^persons were kept in a detention camp by theController of Immigration.
MALCOLM PERERA, J.—Sanlhosan Nadar v. Attorney-General
On 23.12.75 the three accused persons were brought to Court.On this day plaint was filed together with the sanction of A.S.P.to prosecute. The journal entry of this day reads :
Charged from report. Each accused states “ I am not guilty.”
Mr. Pullenayagam submits that the learned Magistrate hasfailed to frame a charge against the accused and therefore there•has been no legal trial.
Section 166 (1) of the Administration of Justice Law reads asfollows :
“ Where the accused is brought before the Court otherwisethan on a summons or warrant the Magistrate shall, afterexamining on oath the person who has brought him beforeCourt and any other person who may be present in Courtable to speak to the facts of the case, if he is of opinion thatthere is sufficient ground for proceeding against the accused,frame a charge.”
This provision of law, which is similar to section 187 (1) of the•Criminal Procedure Code, requires the Court to frame a charge,where the accused is brought before it otherwise than on asummons or warrant, if there is sufficient ground to proceedagainst the accused.
In this case the accusgd was not brought before Court eitheron a summons or a warrant, and therefore it was mandatoryon the Magistrate to have framed a charge. The failure to do socannot be cured. In the Full Bench case of Ebert v. Perera, 23N.L.R. 362, De Sampayo, J. said:
“the entire absence of a charge, where the Magistrate
ought to have framed one, is not a mere irregularity, whichmay be overlooked under section 425, but is a violationof the essential principle generally governing criminalprocedure and vitiates a conviction.”
In the present case the omission to frame a charge is in my-opinion fatal to the conviction. I would accordingly quash the•convictions of the 1st and 3rd accused and remit the case for atrial de novo before another Magistrate.
In view of my order made above, I set aside the order of thelearned Magistrate forfeiting the car bearing distinctive regis-tration No. 1 Sri 5507. The custody of the said car is to be en-trusted to the registered owner Leelawathie Wijesinghe upon thesaid Leelawathie Wijesinghe furnishing such security as shall be-determined by the Magistrate and upon such other conditions and
h'ernandopv.Ue v. Minister of Lands and Agriculture
terms as he shall think it fit to impose. However the said register-ed owner shall produce the car in Court on all dates of trial andon all other days required by the learned Magistrate. If any one•or more of the conditions are violated the bond shall be cancelled.and the car kept in the custody of the Court.
Txtxawella, J.—I agree.