059-NLR-NLR-V-53-THE-ATTORNEY-GENEREAL-Appellant-and-SEEDIN-Respondent.pdf
276
The Attorney-General v. Seedin
1950Present: Nagallhgam J.
THE ATTORNEY-GENERAL, Appellant, and SEEDIN, RespondentS. C. 882— M. C. Matara, 17,713
Criminal procedure—Non-cognizable offence—Power of police officer to institutecriminal proceedings—Criminal Procedure Code, ss. 129, 148 (I) (6)—PoliceOrdinance, ss. 57, 71.
A police officer or a peace officer may institute proceedings under Section148 (1) (b) of the Criminal Procedure Code in respect of ft non-cognizable offence-without obtaining a prior order from a Magistrate under Section 129 toinvestigate the offence.
NAG AUNG AM J.—The Attorney-General t>. Seedin
277
/ PPPIATj from a judgment of the Magistrate's Coui*t, Matara.
T. S. Fernando, Crown Counsel, with A. Mahendrarajah, Crown Counsel,for the Attorney-General.
A. L. Jayasuriya, for the accused respondent.
October 12, 1950. Nagaxjngam J.—
The proceedings in this case commenced with a report under Section148 (1) (6) of the Criminal Procedure Code by an Inspector of Policereporting to Court that the accused respondent had committed offencespunishable under Sections 409 and 486 of the Penal Code. The Magis-trate entertained the plaint and issued summons. The accused havingpleaded not guilty, the case was set down for trial. On the date of trial,even before any evidence was led by the complainant, a preliminaryobjection was taken to the hearing of the charges. The objection wasthat the police officer who had made the report to Court had not obtainedan order from the Magistrate . to investigate the offences which wereadmittedly non-cognizable, and therefore could have neither investigatednor reported the matter to Court under Section 148 (1) (i>). The learnedMagistrate upheld the objection and has acquitted the respondent.
The Attorney-General appeals from that order. It seems to me,that the learned Magistrate has misconstrued the provisions of Section129 of the Criminal Procedure Code, upon which he has based his order.That section does not require that before a police officer or a peaceofficer could report a non-cognizable offence to Court under Section148 (1) (6), he should first have made investigations, and for that purposereceived an order from the Magistrate to investigate the offence. WhatSection 129 does say is that where a police officer does receive an' orderfrom a Magistrate authorising him to investigate a non-cognizable offence,then by virtue of that authority he would become entitled to exercisethe powers conferred upon a police officer by Chapter 16 of the CriminalProcedure Code, namely, powers of recording the first information, . ofrequiring the attendance of persons able to give information with regardto an offence, to examine witnesses, to carry out searches, &c.
Section 57 of the Police Ordinance makes it imperative for a policeofficer to detect and bring offenders to justice. That section does notin any way limit the duties of a police officer either to cognizable or non-cognizable offences, but refers generally to offences, that is to say alltypes of offences.
Mr! Jayasuriya has referred me to Section 71 of the Police Ordinancein which a police officer is enjoined not to receive a complaint in respectof a petty offence, nor to take into his custody any person brought accusedof such petty offences as trespass, assault, quarrelling, or the like.
The Police Ordinance is an Ordinance of 1865 while the Criminal Pro-cedure Code is a later enactment. Under the Criminal Procedure Codethe offence of criminal trespass, which I take it is the same as ‘ trespass ’under the Police Ordinance, is made a cognizable offence. There wouldthus be a conflict between the two enactments. I think, in so far as Section
278
Dharmadasa v. Thiedeman
71 comes into conflict with the provisions of the Criminal Procedure Code,the provisions of the Code must prevail over that of the Police Ordinance.If a police officer is, therefore, required by Section 57 of the Police Ordi-nance to detect offences and bring the offenders to justice, I take it,it will be his proper duty.to make first of all a complaint to the Magistrate,in order to bring the offender to justice. Section 148 (1) (b) requiresa police officer to make a report to Court in respect of any offence anddoes not confine reports under it to cognizable offences and non-cognizableoffences in respect of which a police officer has been authorised to investi-gate. Section 129 is merely an enabling section, but does not in any waydetract, modify, or take away from police officers powers possessed bythem either under the Code or the Police Ordinance. Besides, in thiscase there is no evidence whatsoever to show that the police officer didproceed to make an investigation of the complaint that was made to him.The record only discloses that the police officer made a complaint to theMagistrate of the commission of the offence, coupled with an applicationto the Magistrate that summons should issue on the accused. I do nottherefore think that the learned Magistrate was justified in entertainingthe objection.
The order of the learned Magistrate is set aside, and the case is remittedfor further proceedings to be taken in due course.
Order set aside.