THE ATTORNEY GENERAL, Appellent, and HERATH SINGHO Respondent

035-NLR-NLR-V-49-THE-ATTORNEY-GENERAL-Appellent-and-HERATH-SINGHO-Respondent.pdf


108
DIAS 3.—The Attorney-General v. Herath Singho.
1948Present: Dias J,
THE ATTORNEY-GENERAL, Appellant, and HERATH SINGHO
Respondent.
S. C. 1,264—M. C. Dandagamuwa, 21,427.
Criminal ‘procedure—Prosecution initiated by public officer—Right of private pleaderto conduct prosecution—Criminal Procedure Code, ss. 148 (J) (6), 199, 392.
Where a public officer initiates a prosecution in a summary case under section148 (1) (6) of the Criminal Procedure Code he alone is entitled to conduct theprosecution, and a pleader retained by the injured or aggrieved party has noright to displace the public officer and conduct the prosecution. In section 199of the Criminal Procedure Code the word “complainant” must mean theperson who makes the “ complaint ” to the Magistrate.
Held, further : In a non-summary inquiry section 392 of the Criminal ProcedureCode indicates that, in the absence of the Attorney-General or the Attorney-General’s agents, it is the duty of the Magistrate personally to conduct theprosecution. The provisions of section 392 (2) do not entitle the Magistrateto delegate to a police officer or to a pleader who is not the agent of the Attorney -General, the duty cast on him by law of “ conducting the prosecution ”.
.^^-PPEAL from a judgment of the Magistrate, Dandagamuwa.
Boyd, Jayasuriya, C.C., with A. C. Alles, C.G., for the attomey-General, appellant.
No appearance for the accused-respondent.
January 15, 1948. Dias J.—
In this case A. W. Abeyratne, Sub-Inspector of Police, initiatedproceedings under section 148 (1) (ft) of the Criminal Procedure Codeagainst the accused-respondent R. M. Herath Singho alleging that hedid on the night of May 20, 1947, commit house trespass by entering intothe house of Dingiri Banda with the intention of commiting an offencepunishable under section 434 of the Penal Code. It was further allegedthat at the same time and place the accused-respondent used criminal
DIAS J.—The Attorney-General e. Herath Singho.
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force on Dingiri Banda’s wife, Manel Ethana, with intent to outrage hermodesty, an offence punishable under section 345 of the Penal Code.There was a third charge that the accused-respondent criminally inti-midated the woman by threatening to shoot her with a gun, an offencepunishable under section 486 of the Penal Code.
The permanent Magistrate recorded the formal evidence of the womanwho stated that at about 7.30 p.m., on the day in question her husbandhad gone to the eassawa plantation when the accused entered the houseand closed the front door and held her by the hand. When she raisedcries the accused struck her with the stick P 1 which he had with him.He also had a loaded gun P 2 with him. He threatened the woman andslapped her and struggled with her, in the course of which he kissed her,felt her breasts, and tried to put her on the ground. For her shoutsher husband and neighbours came up and overpowered and arrestedthe accused. She was examined by the doctor who found that she wasinjured.
The Magistrate assumed summary jurisdiction under section 152 (3)of the Criminal Procedure Code on the ground that the facts were simpleand that no questions of law of a complicated character were likely toarise. The accused pleaded not guilty to the charges. It is to be notedthat nowhere in the record is there any indication that a proctor appearedfor him.
The Magistrate put the trial off for June 10, 1947, and for some reasonwhich does not appear on the record, he took steps to ask the LegalSecretary to appoint a local proctor, Mr. O. M. P. Perera, to be gazettedto try the case. The trial was put off unt'l July 8, 1947, when the casewas called before Mr. O. M. P. Perera on that day.
The record reads as follows :—
“ Accd. R. M. Herath Singho present.
Produced by jail authorities. Mr. Storer for the prosecution statesthat he has examined the evidence of witnesses in the case and thatit appears to him that the accused had gone into the house of the com-plainant woman at her invitation when they were surprised by theunexpected appearance of the husband. There had been two childrenand the woman’s brother who had not been put up before the husbandappeared on the scene. I am inclined to believe that the womanwould have raised cries if the man went into the house and struggledwith her as stated by her. This would have put up her brother andthe children. There is nothing in her evidence to show that thesethree who were sleeping were put up by any noise or shouts, clearlyshowing that the accused had gone there at her invitation. I dis-charge accused from the charges under section 345, 434 and 486
The Attorney-General appeals against that order. To his petitionof appeal are appended four affidavits marked A—D from Manel Ethana,her husband Dingiri Banda, the District Medical Assistant Dr. S. Suppiahand Police Sergeant Chandrasekeram, who inquired into the complaintand appeared to prosecute in the Magistrate’s Court. To the Attorney-General’s petition of appeal are also appended copies of the statements
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DIAS J.—The Attorney-General v. JElerath Singho
■of the following persons recorded in the Police Information Book—ManelEthana, Dingiri Banda, Gunerathamy, M. A. Appuhamy, Ukkubandaand Sohandirala. The last four persons helped to disarm and arrestthe accused at the scene.
These documents prove (a) that a day or two previous to July 8, 1947,Dingiri Banda retained Proctor Mr. Storer to prosecute the accused andnot to defend him ; (6) that for such services Mr. Storer was paid the sumof Rs. 20 ; (c) that no instructions were given to Mr. Storer to the elfcctthat the accused had entered the house at the invitation of the woman ;(d) that Mr. Storer questioned Dingiri Banda and the woman, but didnot question any other witness or the doctor ; (e) that no brother of thewoman or other adult was in the house at this time ; (/) that there were■only two little children aged 6 and 4 in the house when the accused didwhat he is alleged to have done ; (g) that Mr. Storer hadno consultation■or communication with the prosecuting police sergeant; (h) that Mr.Storer did not ask to peruse the Information Book extracts ; (i) thatthe case was heard in chambers and not in open Court; (J) that whenthe sergeant protested against the discharge of the accused, a proctor,Francis Jayawardene, who represented the accused (although his namedoes not appear on the record) told the sergeant that he had no statusas the complainant was represented by Mr. Storer ; (k) that the sergeantat once informed Dingiri Banda that his proctor had really appeared asthe proctor for the defence ; (l) that when Dingiri Banda questionedMr. Storer and demanded an explanation and the refund of his fee,Mr. Storer replied “ That’s alright ” and drove off in his car ; (m) thatif the medical officer’s evidence had been led it would have proved thatthe woman had been rather severely assaulted—thereby throwing doubton the suggestion that the accused had entered the house at the invitationof the woman.
In these circumstances I do not think it is possible to allow this orderof discharge to stand. It must be set aside, and the case sent backbefore another Magistrate with the direction that he should takenon-summary proceedings.
This case raises in a rather acute form the vexed question as to whois the “ Complainant ” in a summary case which has been institutedby a public officer or the police under the provisions of section 148 (1) (6)of the Criminal Procedure Code.
Any person has the right to give a Magistrate information in regardto the commission of an alleged offence, and it is open to the Magistrateto commence proceedings on the information so given. The Court may,however, in its descretion refuse to entertain a complaint when it appearsthat the complainant has no interest whatever in the prosecution,especially where the alleged offence is against a law passed for the benefitor protection of a certain class of persons—Inspector of Local Board,Okilaw v. Sollamuttu1, It will be seen that Pereira J. here used theword “ complainant ” as referring to the person who gave informationto or moved the Court to initiate proceedings.
The word “ complainant ” has not been defined by the CriminalProcedure Code. Section 2 (1) defines “ complaint ” to mean “ the
1 (914) 17 N. L. R. 449.
DIAS J.—The Attorney-General v. Herath Singho.
Ill
allegation made orally or in writing to a Magistrate with a view to histaking action under this Code that some person, whether known or un-known, has committed an offence ”. Obviously, these words refer tothe provisions of section 148 of the Code which enumerate the variousmethods by which a Magistrate can be set in motion to try or inquireinto an alleged offence. The “ complainant ”, therefore, must be theperson who makes the “ complaint
There cannot be two or more complainants in the same case, unlessof course there are several aggrieved persons as where X stabs A, B, Cand D, all of whom file one plain: under section 148 (1) (a).
In section 199 therefore the word “ complainant ” must mean theperson who makes the “ complaint ” to the Magistrate.
If the aggrieved person or persons desire to be the “ complainant ”,section 148 (1) (a) gives him or them the right to make a “ complaint ”orally or in writing provided that such “ complaint ”, if in writing, shallbe drawn and countersigned by a pleader and signed by the complainant.
If the aggrieved person or persons, without exercising their rightto make a complaint under section 148 (1) (a), state their grievancesto the police, who after inquiry decide to take up the case and instituteproceedings on their own, then they will file their “ complaint ” undersection 148 (1) (b) and, subject to the law regarding the compoundingof offences, the aggrieved person or persons cease to exercise any furthercontrol over the proceedings.
When the aggrieved party or parties proceed under section 148 (1) (a)they are the “ complainant ” within the meaning of section 199 and areentitled to be represented by a pleads. In Juakino v. Fernando1 thecomplainant initiated proceedings under section 148 (1) (a). TheMagistrate refused to hear the pleader retained by him. It was heldthat section 199 gave the complainant the right to appear by his ownpleader, and that the Magistrate had acted irregularly.
On the other hand, when the aggrieved person or persons induce thepolice to take up their grievance, not only do they thereafter cease tobe “ complainants ” except in a popular sense, but they lose controlover the proceedings. For example, in the event of an acquittal in asummary case, it is the complaining police officer who can appeal.Neither the Attorney-General nor the aggrieved persons can appeal—BaJbiNona v. Wijeysinghe 2. Dalton J. said : “ The first question to be decidedis whether Babi Nona has any right of appeal—the parties to the pro-ceedings in the lower Court being the Sub-Inspector who instituted the‘proceedings and the accused person …. She may well be dis-satisfied with the order of the Court, hut is she a party in the case towhom the right of appeal is given within the meaning of section 338 ofthe Criminal Procedure Code ? She did not institute the proceedingsalthough she could have done so, had she wished, under the provisionsof section 148 (1) (a) of the Criminal Procedure Code. I have heardnothing from Mr. Weerasooria which -satisfies me that Babi Nona isa party in the case as instituted. As I pointed out in Ncmis v. Appuhamy 3it would appear that where section 148 provides for the institution of
* (1910) 3 S. C. D. 91.‘ (1926) 29 N. L. JR. 43.
(1926) 27 N. L. R. 430.
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DIAS J.—The Attorney General v. Herath Singho.
proceedings by complaint or written, report, the person making thecomplaint or written report is regarded as the party instituting theproceedings against the accused person.. This matter has been consideredfrom another aspect in Sedris v. Singho1, but the Court there left it toawait further elucidation. On the facts before me in this appeal, Ihave come to the conclusion that Babi Nona has no right of appeal ”.If Babi Nona was not “ a party ” to the criminal case or matter from whichthe appeal was taken under section 338, a fortiori she could not be“ the complainant ” within the meaning of section 199 when the pro-ceedings were initiated by the police under section 148 (1) (b) of theCriminal Procedure Code. In fact, Dalton J. so holds.
In Grenier v. Edwin Per era2 the proceedings were initiated by thepolice under section 148 (1) (6). Keuneman J. formed the view that therecould be two complainants in a summary case—namely, the public officerwho initiated the proceedings under section 148 (1) (b), and also theaggrieved person who gave information to the police. He further wasof the view that where the question arose as to who should conduct theprosecution under such circumstances, “ it is a matter for the Magistrateto decide in his discretion who should be permitted to conduct the pro-secution in a case like the present He pointed out the desirabilitythat nothing should be done to leave even the impression that the casehas been conducted otherwise than impartially. With great respectI cannot subscribe to the view that there can be two complainants inthe same case—the aggrieved party who did not file the plaint, and thepolice who initiated the proceedings.
In de Silva v. S. 1. Herath3 de Kretser J. who considered that thisquestion deserved consideration by a Divisional Bench ruled that wherea public officer has initiated a prosecution under section 148 (1) (b),he is not entitled to conduct the prosecution, and that a pleader retainedby the complainant (aggrieved party ?) has the right to appear for him,displace the public officer and conduct the prosecution. Again, with thegreatest respect, I am unable to subscribe to this view. In the first• place, the decision of Dalton J. in Babi Nona v. Wijeysinghe4 was notconsidered ; in the second place, a curious position will result. Thepublic officer who investigated the case having been displaced and thecase having been conducted in a manner which possibly did not meetwith his approval, yet he will have to be the appellant in the event of theaccused being acquitted, or an application in revision having to be made.In the third place, it would seem from the judgment that de Kretser J.did not agree with the reasoning in Grenier v. Edwin Per era3I agree with de Kretzer J. that the law could not have contemplatedthat there should be two “ complainants ” in a case, but I cannot agreewith him that where proceedings are initiated under section 148 (1) (b)by a public officer, that he is displaced by the aggrieved party who isthe real complainant. There is no warrant or justification for callingthe public officer “ the informant ”. In my opinion, he is the “ com-plainant ” and the only “ complainant ”. It is clear from the judgmentof Soertsz J. in Sanmugam PiUai v. S. I. P. Ferdinand6 that he did not
» (1921) 23 N. L. R. 171.* (19il) 42 N. L. R. 377.3 (1943) 44 N. L. R. 320.
4 (1926) 29 N. L. R. 43.
6 (1941) 42 N. L. R. 377.• (1942) 46 N. L. R. 380.
DIAS J.—The Attorney-General «. Eerath Singho.
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subscribe to the view that under section 199 the police officer who ini-tiated the proceedings could not conduct the prosecution. Incidentally,this decision is in conflict to some extent with the observations made inPolice Sergeant Kvlatunga v. Mudalihamy1 where the view was expressedthat it is improper for a police officer who is a material witness for theprosecution to conduct the prosecution. Soertsz J. quoted severalunreported decisions of the Supreme Court where a contrary view wastaken.
The danger of permitting private pleaders retained by the aggrievedparty to intervene in a summary trial in which the complainant is apublic officer is illustrated by what happened in this case. When thepolice undertake to prosecute in a case, the Court and the public expectthat the proceedings will be conducted with that detachment and im-partiality which may be wanting when the aggrieved party is allowedto intervene. The aggrieved party and those advising him are respon-sible to nobody. Furthermore, if the aggrieved party is allowed tointervene, he can claim not only that his advisers should interview andinterrogate the prosecution witnesses, but also that the Information Bookentries relating to the case should be made available to them. Has theaggrieved party or his lawyers the right to peruse the Information Book?I doubt it.
Non-summary inquiries stand on an entirely different footing by reasonof the language of section 392 of the Criminal Procedure Code.
The only persons entitled to appear before the Magistrate and conductthe prosecution in a non-summary inquiry are—
The Attorney-General;
The Solicitor-General;
Crown Counsel;
A pleader generally authorised by the Attorney-General, e.g., the
Crown Advocate or the Crown Proctor ;
A pleader specially authorised by the Attorney-General, e.g., an
advocate or proctor who has obtained special authority fromthe Attorney-General to prosecute in that particular case ; and
In the absence of any of the foregoing persons, the law casts the
imperative duty on the Magistrate personally “ to conduct theprosecution
Neither the public officer, police officer nor the aggrieved party whoinitiated the proceedings under section 148 has any right to demandthat he or a pleader retained by him should be allowed to conduct theprosecution. In the absence of the Law Officers or the agents of theAttorney-General, it is the duty of the Magistrate to assume the role ofprosecutor, to keep the threads of the inquiry in his own hands, to giveinstructions to the authorities or the aggrieved party who is the com-plainant as to what evidence is to be available, &c., and “ to conductthe prosecution ” personally.
The law, however, says that “ Nothing in this section shall preclude theMagistrate from availing himself, if he considers it so desirable, of the
1 (1940) 42 N. L. R. at n. 35.
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Fernando v. Fernando.
■assistance of any pleader or public officer in the conduct of any inquiry ”—section 392 (2). In other words, in each case where the Magistrateconsiders it is desirable that he should have such assistance, he shouldmake a minute on the record to that effect. Furthermore, the pleaderor public officer is called in “ to assist ” the Magistrate and not to relievehim of his duty of conducting the prosecution.
The case law based on section 199 of the Crixninal Procedure Codehas no relevancy or bearing on the interpretation of section 392 whichis based on entirely different principles. A non-summary inquirymay end in the committal of an accused for trial before a higher Court.Non-summary offences, unlike summary offences, are of a more seriousnature, and it is essential that the Crown (i.ethe public) being theinterested party, the preliminary investigation should be detached anddispassionate, which may not be the case if partisanship is introducedinto the case by allowing the aggrieved party or the police to interferewith the course of the proceedings.
It is the duty of the Magistrate who is conducting a non-summaryinquiry to study the proof, and to satisfy himself before committal (a)that the evidence covers all the ingredients of the offence charged, andib) that all the requisite witnesses, documents, and exhibits have beenproduced ; and if necessary to give directions for their production. TheMagistrate holding a non-summary inquiry is not only a judge, buthe is the investigating officer as well. He cannot delegate the latterduty to anybody else when the Attorney-General or his agents are notconducting the prosecution.
I quash the order appealed against and send the case back for non-summary proceedings to be taken before a magistrate other than Mr.
O.M. P. Perera.
In terms of section 352 of the Criminal Procedure Code I directthat the accused-respondent shall pay to the Crown costs which I fixat Rs. 52.50.
Appeal allowed.
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