097-NLR-NLR-V-11-THE-KING-v.-HARIP-BOOSA.pdf
( 355 )
Present : Mr. Justice Wendt.
THE KING v. HARIP BOOSA.
D. C. {Grim.), Kandy, 1.916.
Indictment—Competency of the District Court to go behind indictment—Warrant of commitment—CeylonPenal Code, s.180—Criminal
Procedure Code, s. 147.
A District Court, before which an accused person is broughtfor trial upon a warrant of commitment regular on the face of it.and to which an indictment is presented by the Attorney-General,is notcompetent to inquire whetherthe proceedings which
culminated in the committal were regularly instituted or regularlyconducted.
.Queen v. Kolandana.il2 and The Attorney-General e. Appuwa Veda*followed.
A
PPEAL by the Attorney-General from an acquittal. Thefacts appear in the judgment.
Walter Pereira, K.C., S.-G., for the Attorney-General.
There was no appearance for the accused, respondent.
Cut adv. vult.
(1864) 11 L. T. N. S. S5Z.» (1891) 1 S. C. R. 198.
* (1907) 10 N. L. R. 199.
1908.
October 28a
i
( 366 )
1908.
October 28.
October 28, 1908. Wendt J.—
The Attorney-General appeals against the order of the learnedDistrict Judge rejecting the indictment presented by him againstthe .two accused, on the ground that the .-preliminary Police Courtproceedings were “ vicious and incapable of affording grounds for avalid indictment.” The defect relied upon by the pleader for thefirst accused was that the charge (under section 180 of the PenalCode) required the sanction of the Attorney-General under section147 of the Criminal Procedure Code, but no such sanction had beengiven. The District Judge upheld this objection, and himself tookthe further objection that the complaint upon which the PoliceCourt proceeded had not been made by the public servant concerned,viz , the Superintendent of Police, nor by ar. Officer to whom hewas subordinate, but by a police sergeant.
In my opinion the appeal must succeed. A District Court, beforewhich an accused person is brought for trial upon a warrant ofcommitment regular on its face, and to which an indictment ispresented by the Attorney-General, is not competent to inquirewhether .the proceedings which culminated in the committal wereregularly instituted or regularly conducted. It is its duty to trythe accused. This point, if it was ever doubtful, has been settledsince the case of the Queen v. Kolandavail.1 See also Attorney-General v. Appuwa Vecla.1 The point was not considered in TheKing v. Harmanis,3 the headnote to that case being misleading.
The District Judge’s order is set aside, and the case sent back fortrial in due course. Only the first accused has been served withnotice of the appeal. He has not appeared. The District Judge’sletter to the Registrar of the 26th instant informs us that, in spite ofefforts made both by the Fiscal and the Police, service has not beeneffected on the second accused. I do no.t think it proper to furtherdelay the decision of the appeal. If the attendance of the secondaccused can be secured, the District Judge will try him along withfirst accused, unless he desires to be heard in this Court against theAttorney-General’s appeal; in that event the District Judge willadjourn the trial, taking adequate bail from the second accused,and will send the record to this Court, giving second accused, noticeof the appeal. If the attendance of the second accused cannot besecured, the District Court will proceed with the trial of the firstalone.
Appeal allowed.
♦1 (1891) 1 S. C. R. 198.* (1907) 10 A*. L. R. 199.
» (1908) 8 N. L. R. 188.