006-NLR-NLR-V-40-TENNEKONE-v.-DAHANAYAKE.pdf
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Tennefcone v. Dahanayake.
1938
Present: Koch J.
TENNEKONE v. DAHANAYAKE.
264—P. C. Hatton, 7,634.
Charge—Proceedings originate -with police report—Summons issued—Accusedappear before service of summons—Charge framed from summons—Criminal Procedure Code, ss. 148 (b) and 187.
Where, on a police report under section 148 (b) of the Criminal ProcedureCode, summons was issued against an accused person and the accusedappeared in Court before service of summons, and where the Magistrateexplained the charge to the accused from the summons,—
Held,.the omission to frame a charge was not a fatal irregularity.Hendricfc v. Pelis Appu (1. C. W. R. 194) followed.
i 31 L. J. Ex. 233.
KOCH J.—Tennekone v. Dahanayake.
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— **
^^PPEAL from a conviction by the Police Magistrate of Hatton.
Sri Nissanka (with him Victor Gunaratne), for accused, appellant.Gunasekara, C.C., for Crown, respondent.
Cur. adv. vult.
June 23, 1938. Koch J.—
The appellant, who was the driver of a private car, was charged withhaving plied the car for hire in contravention of the conditions insertedin his licence and was convicted under section 84 of the Motor Ordinance,No. 20 of 1927. He was sentenced to pay a fine of Rs. 100. The appealis not pressed on the facts. His Counsel has, however, raised a point oflaw of some interest.
A police report under section 148 (b) of the Criminal Procedure Codewas presented to Court on March 21, 1938, and the appellant was warnedby the Police to appear on March 28. Summons appear to have issuedon the appellant in the meantime, although I do not see an entry authoriz-ing such issue. The accused, however, in obedience to the warningappeared in Court on March 28. On that date, the entry made is asfollows:—“ No return to summons. Call for and reissue for April 11,1938. Accused present. Charge is read and explained under section 187of the Criminal Procedure Code from summons. Accused states: —
‘ I am not guilty ’. Summons taken by Sergeant. Trial, April 4, 1938 ”,It is somewhat difficult to understand why there should have been areissue of summons ordered when the accused was present and the chargewas read to him from the summons.
The point raised by Mr. Gunaratne on behalf of the appellant is that asthe accused was not brought before the Court on a summons or a warrant,the Magistrate should have framed a charge against him. He relies onsection 187 (1) and (2) of the Criminal Procedure Code.
It is clear that the appellant was not brought before the Court on asummons, but a summons had issued. Was the Magistrate justified inthe circumstances in dispensing with the framing of a charge and readingthe charge from the summons to the appellant ?
The authorities on the point are conflicting. The earlier decisions arein the appellant’s favour. They are: (1) Inspector of Police v. Elaris (2) Sanders v. Vally Thampan (3) James Appu v. Egonis Appua,(4) Assan Singho v. PereraJ.
They were all cases in which warrants were issued by the Court, but theaccused were present in Court, although the warrants had not beenexecuted.
The present case is one of summons, but the principle would be the sameas was indicated by Schneider J. in Assan Singho v. Perera (supra).
In Hendrick v. Pelis Appue, however, Shaw J. held that as the objeetof framing a charge and reading it to the accused was to inform him of1 6 Balasingham's Notes 37.,3 3 0. W. It. 363.
* 1 Criminal Appeal Reports 55.-* 6 C. W. R. 278.
5 2 C. W. ft. 194.
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KOCH J.—-Tennefcone v. Dahanayake.
the exact offence of which he is accused, the omission to frame a chargewas not an irregularity as the charge was read from the warrant. In thiscase the accused appeared but not on the warrant.
This decision was followed by Schneider J. in the two cases of AssanSingho v. Perera (supra) and Mudiyanse v. Appuhamy
In Ebert v. Perera2, a case which came up before a Divisional Bench ofthree Judges in 1922, the point decided was that where proceedings wereinstituted under section 148 (b) of the Criminal Procedure Code and theoffence committed was punishable with more than three months’ impri-sonment and the accused appeared without a summons or a warrant, theMagistrate was not justified in reading the charge from the report. Itwas held that he should have framed a charge and the irregularity was notcovered by section 425 of the Criminal Procedure Code. In the course ofhis judgment Ennis J. referred to the decision of Shaw J. in Hendrick v.Pelis Appu (supra), and approved of it. His opinion was that an appear-ance in Court to show cause against a complaint when a warrant or asummons had been issued was an appearance on the summons or warrant,even though the summons or the warrant had not been executed.Schneider J. one of the other Judges concurred and agreed, to use his ownwords, “with the reasoning and conclusions” arrived at by Ennis J.De Sampayo J. in a separate judgment justified the decision in Hendrickv. Pelis Appu (supra) on the ground that it was the Magistrate who statedthe .charge in the summons or warrant, and that therefore there was nopractical object in requiring the Magistrate to record the charge overagain. This view clashes with what he himself previously expressed inJames Appu v. Egonis Appu (supra) and Assan Singho v. Perera(supra).
The opinions of the three Judges in this case are entitled to the highestrespect, although they appear to be obiter.
In a later case, Abanchy v. Sirimalhamy *, Porter J. followed the rulingin James Appu v. Egonis Appu (supra), but the cases which expressed acontrary view were not cited before him.
Considering that the later decisions met with the approval of theDivisional Bench and that De Sampayo J., who decided the earlier cases,had reason to change his opinion, the decisions in the later cases must beadopted by me and I am bound by them.
Mr. Gunaratne wanted me to refer this matter to a larger Bench, but.1 think that the law is now fairly settled on the point and there is thereforeno necessity to carry it further.
The appeal is dismissed.
Affirmed.
1 22 N. L. R. 169.2 23 N. L. R. 362.
3 1 Times of Ceylon 183.