THE KING v. VALLAYAN SITTAMBARAM

053-NLR-NLR-V-20-THE-KING-v.-VALLAYAN-SITTAMBARAM.pdf


( 257 )
[Full Bench.]'1918.
Present: Bertram C.J., Ennis and Shaw JJ.
THE KING v. VALLAYAN SITTAMBABAM.70—D. C. (Grim.) Kandy, 2,884.Indictment—Particulars of offences explainedto accused unders.156,
Criminal Procedure Code—Different charges framed in the indict-ment—Is it illegal or irregular t—Right of accused to make un-sworn statement at the trial—Accused brought from India on awarrant under the Fugitive Offenders Act—Trial of accused oncharges not stated in the warrant—Misappropriation of moneyscollected from several persons for payment to a particular person—
One charge in respect of total sum collected.
Per Few. Counx.—A prisoner may, if he prefers it, make anunsworn statement from the dock, instead of giving evidence fromthe witness box. Wherea District Judge refused to allowthe
prisoner to make an unswornstatement, it was heldthat the
irregularity was of such a nature as necessarily to cause a failureof justice.
Per BebtbamC.J?.and Etnas J. (Shaw J. dissentients.)—The
Attorney-General may frame a charge in respect of any offencedisclosed at the preliminary inquiry before a Police Magistrate,thoneh particulars of the offence were not explained to the accusedat the commencement ofthe inqniryunder section 155ofthe
Criminal Procedure Code.
Shaw J.—The Attorney-General has no power to indict theaccused – in respect of any offence with which he has not beencharged under section 155,unless suchoffence is includedinthe
original offence with which he was charged.
A District Court is not bound to accept and proceed upon anyindictment presented by the Attorney-General without regard to- whether it is authorized by law or not. “ There having been nomagisterial inquiry into the offences charged in the indictment,the indictment should, in my opinion, have been quashed.”
Bertram C.J.—It is open to the Attorney-General, if he thinkssuch a course appropriate, to instruct the Police Magistrate beforecommitting a case for trial to explain, to the accused the nature ofany offence on which he contemplates indicting him, and to affordhim an opportunity of making any statement under section 155, orof cross-examining anywitnesses onthedepositions alreadytaken,
or of tendering new witnesses on his own account.
Even though the Magistrate may not think ' it necessary formallyto explain to the accused any fresh offence which may incidentally !be disclosed in the course of the inquiry, and in respect of which itis possible that a specific charge may ultimately be preferred, yetit is open to him, and in appropriate cases he ought, if the factsconstituting the allegedoffence werenotbefore the accusedwhen
he made his statementunder section155,to interrogate himunder
( 259 )
IMS.
The King v.
VaBaf/an
SiUambaram
section 296 with reference to these facts, and thus afford him anopportunity of givingany explanation with regardtothem.This
interrogation of theaccused undersection 296 isobligatoryupon
the Magistrate (seesection165(3)),andshould beadministered,
not with the objectof investigatingthe facts, butinthe interests
of the accused. Itis notanordealthrough whichthe accused
must pass, but aprivilegetowhichheis entitled.One of the
thingB which the Magistrate may well bear in mind in the courseof this interrogation is the fact that allegations —have been madeagainst the accusedin thecourse oftheinquiry which may con-
ceivably be made the subject of a count in the indictment. He.may well say to the accused: “Do you wish to make any statementas to this-or that point? ”
Per Bertram C.J. (points not reserved for the Dull Court):—
Where a person collects a sum of money from various persons,to pay the total sum so collected to a particular person, andmisappropriates the sum so – collected, it is competent to the' Crown toprefer a single charge in respect of the total amount so appropriated;it is not necessaryto treat themisappropriationofeachsingle
subscription as a separate offence, and to lay separate charges – inrespect of each subscription.
The trial of a prisoner who was brought to Ceylon on awarrant under the Fugitive Offenders Act (from India) need not berestricted to the charge contained in the warrant.
fJiHE facts are set out in the judgment of the Chief Justice.Bawa, K.C., and Arulanandan, for the accused, appellant.
Garvin, S.-G., and De Swam, G.G., for the Crown.
Gur. adv. vv.lt.
August 2, 1918. Bektbam C.J.—
The accused in this case was the manager of what is known as a .“ sittu ” club, and the original complaint which was instituted againsthim was a general complaint of misappropriation of the funds of theclub. It described the terms on which the members subscribed, andproceeded: “ Segu Meedin became entitled to draw the third month’scollection, Ahamadu the fourth, Maradai the fifth. No other lotswere drawn, because none of these three were paid. The accusedhas bolted to the Coast. I contributed Bs. 240. I have not beenpaid that sum or any part of it. Accused has gone away with allthe stakes. I charge him with criminal breach of trust,” and movedfor a warrant under the Fugitive Offenders Act. The complaintthus comprised four charges. But the warrant under the FugitiveOffenders Act, which was issued in consequence of the complaint,was confined to the case of the complainant himself, and chargedhim with “ being a stakeholder of a ‘ sittu ’ club, and entrustedwith Es. 240, amount subscribed by one A. Kadiravail of Katukele,Kandy, did commit criminal breach of trust in respect of the same.”The offence charged in this warrant was the only offence explainedto the accused at the preliminary magisterial inquiry.
( 269 )
The facts were as follows. The accused was the manager or thestakeholder of the club. There were eleven shares, each shareinvolving a subscription of Bs. 40 a month. One member mighthold more than one share. The total membership Was, in fact, nine.One member, a woman named Maradai, held three shares. 'Theenterprise was to continue for a period of eleven months. The totalsubscriptions were sold by auction. The member who undertookto accept the least subscriptions in respect of that month’s sub-scriptions became entitled to the amount subscribed. Upon itsbeing ascertained what discount the successful purchaser wasprepared to give in respect of the total of Bs. 440, a correspondingreduction was made from the subscriptions due from each member,And he was called upon to pay this reduced amount. It was theduty of the accused to collect these reduced amounts and pay themover to the successful purchaser. The auction was held on the 15thof each month, and the accused was expected to .get in the sub-scriptions and pay them over to the successful purchaser by the 20th.The purchaser thus receiving the monthly pool, of course, continuedliable for the subsequent subscriptions, and it was a rule of the clubthat any purchaser thus receiving a month’s pool should give themanager a promissory note for the amount of the subsequentsubscriptions due from him. The accused himself drew the firstmonth’s subscriptions in full, as remuneration for his services. Thesecond month’s subscriptions were duly paid to the person entitledto it. With regard to the next three months, namely, theDecember, 1916, and January and February, 1917, subscriptions,were not, in fact, paid on the due date. The auctions for thesethree months fixed the amount of the subscriptions at Bs. 355,Bs. 365, and Bs. 370, respectively. I will take these three months. seriatim.
(ej The December Pool, Be. 355.—This was bought by one SeguNadar (referred to in the complaint as Segu Meedin), on December15, 1916. On December 20 he ought to have received this sum lesshis own subscription. It was not paid over to him, or to his brother,,who was .looking after his affairs in his absence. It is suggested onbehalf of the accused that his withholding of the money was due tothe fact that there Was no one authorized to give him a discharge orto sign a promissory note for the subsequent subscriptions. SeguNadar returned to the Island in 1917. He demanded his moneyfrom the accused. The accused asked him for the usual promissorynote securing future subscriptions. Segu Nadar was ready to givethe note on the money being produced. On the money not beingproduced, Segu Nadar sued the accused, not for the amount of theDecember pool, but for the return of all the subscriptions he hadpaid. He got judgment for this amount, and ultimately, manymonths afterwards, the judgment was discharged by the accused’suncle.
1918.
Bbiwkim
CJ.
The King v.
Vallay anSittambaram
( 260 )
1918.
Bbbtrah
C.J.
The King v.V allay anSittambaram
The January Pool, Rs. 365.—-This was bought by one Aha-madu. He demanded payment on January 20, but was told hemust produce a surety for future subscriptions. After some dis-cussion, on some date between January 20 and February 27, he waspaid the Rs. 865 less his own subscription, on his giving a promissorynote for future subscriptions, which the accused insisted on hismaking out for the full amount of Rs. 440, and which the accusedthen proceeded to put in suit. Only Rs. 240 was . in fact due,and on this amount being paid, Ahamadu was given a cleandischarge.
The February Pool, Rs. 370.—This was bought by a womannamed Kandasamy Maradai. It was due on February 20, buthad not been paid at the commencement of March. KandasamyMaradai, hearing that the accused was preparing to go to India,presented a petition in the Police Court. The Magistrate referredher to her civil remedy. Negotiations ensued, and on March 14the accused paid Kandasamy Maradai the amount due to her inrespect of the pool, and a little over. The amount due to Kanda-samy Maradai was Rs. 370 less Rs. 106, being her subscription duein respect of three shares which she held in the club, that is to say,Rs. 264 nett. The amount she was actually paid was Rs. 270. Atthe same time the accused gave her a promissory note for Rs. 200,being the balance of the agreed amount of the subscriptions she hadalready paid. After giving this note the accused went (or, as it isvariously expressed in the evidence, “ bolted"' or “absconded") toIndia. He was brought back on a warrant under the FugitiveOffenders Act above referred to, and when he came back he did notpay the note for Rs. 200.
The case against the accused was presented with great incomplete-ness and inexactitude. No serious attempt was made to show theactual amount that reached his hands. It was proved that hereceived certain subscriptions, and the Court was asked to “presume,"’and, in fact, did presume, that he did receive the rest. He wascharged with misappropriating the total amount of the pool. Thisinvolves a charge of misappropriating, not only his own subscriptionstbut also the subscriptions of the member to whom the pool was' due,and who, of course, would not pay the subscription for that month.In spite of this incompleteness and inexactitude, it, nevertheless,appeared that in each of the months under consideration a certainamount of trust money was in the accused’s hands, and that he didnot pay this sum to the person entitled to it on the due date. Thequestion for the District Court to consider was whether,'in thecircumstances of this case, he must be held ,to have committedcriminal breach of trust in respect of the sums so received and notpaid over.
The accused was tried on an indictment containing three counts,one in respect of each of the months referred to. The District Judge
( 261 )
found him guilty of criminal breach of trust on each count, andsentenced him to one year’s rigorous imprisonment on each count,the sentences to run concurrently.
On ippeal, a series of preliminary objections was taken on behalfof the accused, with which I will deal successively.
The first was that it was not competent to the Crown tocharge a criminal breach of trust in respect of a monthly total, butthat it was bound to lay the charge in respeot of specific contributionspaid by particular members. It was contended that the appro-priation of each sigle subscription was a separate offence!, and mustbe so charged. I do not so understand the position. If a personcollects an aggregate sum from various sources under a trust to paythe total sum when so collected to a particular person or for a parti-cular object, this total, or such proportion of it as he may succeed incollecting, when so collected, is a trust fund in his hands, and, if thissum or any part of it is dishonestly appropriated to the use of theperson collecting it, it is competent to the Crown to prefer a singlecharge in respect of the amount so appropriated. I see no reasonwhy on principle this should not be so, and it has been so decided inEngland with regard to the corresponding offence of embezzlement(see Beg. v. Balls 1). In that case the prisoner was a member of aco-partnership. It was his duty to receive money for the co-partner-ship, and once a week to render an account and pay over the grossamount received during the previous week. During each of threeseveral weeks the prisoner received various small sums and failed toaccount for them at the end of the week, but embezzled the money.It was held that he might be properly charged with embezzlingthe weekly aggregates; that three acts of embezzlement of suchweekly aggregates within six months might be charged and provedunder one indictment; and that evidence of small sums receivedduring each week was admissible to show how these aggregateswere made up.
Another objection had reference to the fact that the prisoner wasbrought from India under the Fugitive Offenders Act. He wastried on charges other than those specified in the warrant. It wassuggested that by analogy of the principles observed .in extraditionproceedings the trial of the prisoner must be restricted to the chargecontained in the warrant. There is, however, no ground for thiscontention. The principles which govern extradition proceedingsand proceedings under the Fugitive Offenders Act are not the same.The matter will be found explained in Pigott on Extradition, pages301 and 302.
1918.
CJ.
The King v.
Vallayan
Sitlambaram
' The third objection is of a more substantial nature, and it waswith reference to this objection that I directed the case to be referredto the Full Court. As explained above, the charge on which the i
i (1871) L. B. 1 C. G. R. 328.
( 262 )
1918*
Bkrtbah
OJ.
The King v.
VaOayan
SiUambaram
inquiry proceeded was not the original complaint of the complainant,but the charge embodied in the warrant under the Fugitive OffendersAct. It was the offence thus specified which was explained to theaccused, in pursuance of section 165 of the Criminal Procedure Code.The offences on which the accused was finally indicted, however, didnot comprise this offence, but were the other three offences referredto in the original complaint. It was contended by Mr. Bawa, forthe appellant, that it was not competent to the Crown to indict theappellant on these charges, and that the only offence on whichhe could be indicted was the offence the nature of which was explained-to him at the commencement of the inquiry under section 155. Heurged, therefore, that an indictment on these three charges was anabsolute illegality, or. if it was not an illegality, it was, at least, anirregularity, and an irregularity of such a nature as to prejudice theaccused on his trial. This contention raises very important questions,which go to the root of the procedure applicable in preliminaryinquiries under the Criminal Procedure Code.
It often happens in charges of criminal breach of trust or otherforms of fraud that an inquiry instituted into a specific chargenaturally and properly travels beyond the actual facts charged. Itmay be necessary to go into other items than those under considera-tion, and into the whole system and course of business out of whichthe charge originates. In this case the inquiry necessarily involvedan inquiry into the whole system of the “ sittu ” club in question,and, as the result of this inquiry, the Crown found it more appro-priate to lay charges in respect of three matters other than that putto the accused at the commencement of the inquiry, but which wereof the same nature and were the subject of the same evidence^ Inorder to determine whether it was competent to prefer these charges,let us examine the course of procedure in these preliminary inquiries.The stages in these inquiries are as follows:—
" When the accused is brought before the Court ”—wordswhich seem to imply, as nearly as possible, at the commencementof the inquiry—“ it is the duty of the Court to explain the nature ofthe offence of which he is accused " (section 155). In the case ofsummary inquiries the Magistrate must frame a charge (section 187).In non-summary inquiries, however, no charge is actually frameduntil the indictment.
Upon the nature of the offence being explained to him, theaccused is invited to make a statement. In the case of a summarytrial he is not invited to make a statement, but is called upon toplead.
Before the conclusion of the inquiry, if the Magistrate thinksthat there is a prim& facie case of guilt, it is his duty to interrogatethe accused under section 295, so as to enable the accused to explainany circumstances that may have appeared in the evidence againsthim.
1918.
( 263 )
There is no express provision with regard to non-summaryinquiries corresponding to section 172, under which, at an actualtrial, the Court may alter the charge^ or add any additional charge tothat under investigation.
Upon the conclusion of the inquiry, if the Magistrate finds“ that there are sufficient grounds for committing the accused fortrial,” the record is forwarded to the Attorney-General, and theAttorney-General, if he thinks fit, directs the committal of the accusedupon an indictment in which the formal charge is for thefirst time framed.
It will be observed that it is nowhere said that, in framing theindictment, the Attorney-General is restricted to the offence, thenature of which was explained to the prisoner at the commencementof the inquiry. On the contrary, it appears from sections 178-181that charges may be framed in various combinations. Threeoffences of the same kind committed within twelve months may becombined in the same indictment (section 179). A series of actsmay be so connected together in one transaction as to constitutemore than one offence; the acts alleged may constitute an offencefalling within two or more separate definitions. Certain acts whichthemselves constitute offences may when combined constitute adifferent offence (section 180). So also, under section 181, a singleact or a series of acts may be of such a nature that it is doubtfulwhich of several offences the facts which can be proved will consti-tute. The Code contemplates that it shall be open to the Attorney-General to frame the charges in the indictment accordingly. Butit does not appear, when he can effectively do this, if he is restrictedin his indictment to the actual offence explained to the accused atthe commencement of the inquiry. It is said that the accused maysuffer prejudice if he is indicted with an offence not explained tohim at the inquiry, and with respect to which he is affordedno opportunity of making a statement provided for in section 155;but he is equally liable to be prejudiced if the Court adds a chargeat his trial under section 172, and it is to be borne in mind that inany case the evidence tendered against him at his trial has beenpreviously given at the inquiry in the form of depositions, of whichhe is cognizant.
The question is one not without difficulty, and as it is one withrespect to which there is no express provision in the Code, it isone with regard to which,- in accordance with section 6, we maylegitimately have recourse to the principles' of procedure in forcein England.
In England, theoretically, not only the Crown, but any person isentitled to prefer an indictment before the Grand Jury. By theVexatious Indictments Act, 1859, however, no bill or indictment canbe presented in respect of the numerous offences comprised in thatAct, unless the prosecutor has been bound over to prosecute, or
Bertram
C.J.
Th* King e.
Vallay anSittambaram
C 264 )
IMS. unless the accused person has been ^committed for trial for thepumroiw offence, or his trial has been ordered by a competent authority.
CUT. Difficulties arose under that Act, owing to objections raised on behalfTKel&ng v. °* prisoners that they had not been charged before theVaHayan Magistrate with the precise offence stated in the indictment. It wasStUambaram acc0rdingly provided by 30 and 31 Viet., c. 35* that the provisionsof the Vexatious Indictments Act were not to prevent the present-ment of an indictment containing a count for any of the offencesmentioned in the Act, if the count was founded, in the opinion of theCourt, upon the facts or evidence disclosed in the examination ordepositions taken before the Magistrate in the presence of the personaccused. Further, all jury trials in England are, with rare excep-tions, in practice tried upon commitments from Magisterial Courtsunder the Indictable Offences Act, 1848, and connected Acts. It isthe recognized practice in England that, whatever may be the chargeon which the person to be indicted was originally charged or com-mitted, it is open to the Crown to prefer a count inv respect of anyindictable offence disclosed by the depositions (see the case of TheQueen v. Brown 2) This principle is illustrated by the rules in forcewith regard to the use at the trial of depositions taken at the preli-minary inquiry, when by reason of death, absence, or otherwisethe deponent cannot be called. The Indictable Offences Act, 1848,section 17, prescribes the conditions under which these depositionsmay be used at the trial, and it has been held, “ that the depositionis receivable only where the indictment is substantially for the sameoffence as that with which the defendant was charged before theJustices (Rex v.. Ledbetter 2). The charges, however, need not beidentical. “ The point is not whethervthe inquiry before the Magis-trate was exactly the same as that before the Judge, but whetherthat inquiry was such that a full opportunity of cross-examinationhas been given to the party accused ” (per Alverstone B. in Rex v.Beeston 3).
I feel that grave inconvenience might be caused in the administra-tion of justice in this country if any other rule were adopted, andif, in preferring charges as the result of preliminary inquiries, theCrown were confined to the offence specified by the Magistrate orsome police authority at or before the commencement of the preli-minary inquiry, or if the Crown could only prefer the appropriatecharge as the result of directing a new inquiry altogether. I donot think, therefore, that it should be held that it was not opento the Crown in this case to present the charges preferred in the■indictment.
While I am sensible, however, of the inconvenience which mightresult from the laying down of such a restrictive rule as that con-tended for, I am also sensible that inconvenience might in somecases result to the accused, if the principles which are in force in
1(1895) 1 Q. B, 119.23C.& K. 108.
* 24 L. J. {M.C.) 5.
( 266 )
England were applied, as all general principles can be applied, inan unreasonable and arbitrary manner. I would, however, drawattention to the fact that the Code is sufficiently elastic to afford theaccused all possible facilities that may be necessary for his protec-tion, and that it is the duly of Magistrates, and those who instructthem, to see that those facilities are in fact afforded.
In the first place, there is nothing to prevent an inquiry beingheld into several offences together. If in the course of an inquiryfresh alleged offences come to light which are of such a nature thatthey may be appropriately embraced within the scope of that inquiry,there is no reason why the Magistrate, acting' in pursuance ofsection 148 (c), should not explain the nature of these offences tothe accused under section 156, give him an opportunity of makingany' statement, and proceed with the inquiry into the originaloffence and these offences concurrently. He is not bound to takethis course. Facts may be deposed to which may simply be used asevidence of system, knowledge, or motive, and may never be madethe subject of substantive charges at all. Whether he will deal withthese facts as matters for action under section 155 is a matter withinthe discretion of the Magistrate.
In the second place, if in the course of an inquiry anotheralleged offence comes to light, which is of such a nature thatit cannot appropriately be investigated as part of the sameinquiry, but ought to be made the subject of a separate inquiry,the Magistrate can proceed accordingly, and institute such aseparate inquiry. It is also open to the Attorney-General, whenthe case is referred to him by the. Magistrate, to direct this courseto be taken. If, in fact, charges are embraced in the samepreliminary inquiry of such a nature that this combinationtends to obscure the issue or otherwise to embarrass the accused,I apprehend that this Court under its general powers would becompetent to direct a new trial based upon a fresh preliminaryinquiry.
Further, it is open to the Attorney-General, if he thinks sucha course appropriate, to instruct the Police Magistrate before com-mitting a case for trial to explain to the accused the nature of anyoffence on which he contemplates indicting him, and to afford himan opportunity of making any statement under section 155, or ofcross-examining any witnesses on the depositions already taken, orof tendering new witnesses on his own account. Finally, eventhough the Magistrate may not think it necessary formally -toexplain to the accused any fresh offence which may incidentallybe disclosed in the course of the inquiry, and in' respect of which itis possible that a specific charge may ultimately be preferred, yetit is open to him, and in appropriate cases he ought, if the factsconstituting the alleged offence were not before the accused whenhe made his statement under section 155, to interrogate him under
1918.
Bkbtrax
OJ.
The King «.
VaUayan
SiUambaram
( 266 )
1918.
'PbhiiHAM
cu.
The King v.
VaUayan
SiUambaram
section 295 with reference to these facts, and thus, afford him anopportunity of giving any explanation with regard to them. Thisinterrogation of the accused under section 295 is obligatory uponthe Magistrate (see section 155 (3), and should be administered),not with the object of investigating the facts, but in the interests ofthe accused. It is not an ordeal through which the accused mustpass, but a privilege to which he is entitled. One of the things'which the Magistrate may well bear in mind in the course of thisinterrogation is the fact that allegations have been made against theaccused in the course of the inquiry which may conceivably be madethe subject pf a count in the indictment. He may well say to theaccused: “ Do you wish to make' any statement as to thi6 or thatpoint ? ’*
Although the objection thus fails, yet, when the case went totrial before the District Judge, the point raised by this objectioncame up in another form, and here, I think, the point is fatal to theconviction. At the conclusion of the case for the Crown, when theaccused was called* upon for his defence, his counsel took the objec-tion that his client had been prejudiced in his defence by theomission of the Magistrate to formulate the charges on which he wasnow indicted, and to record his statement under section 155. Hesaid that his client was prepared to make his statement then, if hewas given an opportunity, and tendered a statement in writing.The learned District Judge disallowed this application, holding thatany statement, made by the accused would have to be made in thewitness box, subject to cross-examination. The learned Judge thusrefused to the accused an opportunity of making an unsworn state-ment. It is, perhaps, not surprising that he did so. The effect ofthe change in the law of criminal procedure, which allows an accusedperson to give evidence on his own behalf, has been such that unswornstatements have now practically become obsolete. Moreover, thestatement was not tendered as $n unsworn statement to be made inlieu of formal sworn evidence, but as a special statement in lieu of thestatement which ought to have been made .in the Police Court. Thereis nothing, however, in the fact that the law now allows the prisonerto give evidence, to take from him the. right which he previouslyenjoyed of making, an unsworn statement. There is no provisionon this subject one way or the other in the Code*, and this is, therefore,another point on which we may have recourse to English procedure.The rules of English procedure are plain. The prisoner may stillif he prefers it, make an unsworn statement from the dock, insteadof giving evidence from the witness box, and on this analogy he hasthe same right in Ceylon. The action of the District Judge would,therefore, appear to be an irregularity, and an irregularity of such anature as necessarily to cause a failure of justice, in that it neces-sarily prejudiced the defence of the accused. On these grounds,therefore, the appeal must be allowed.
( 267 )
There is another point of view from which this case, may beregarded, and from this point of view it may be said that there wasan irregularity. The Police Court proceedings were instituted bythe complaint of Kadiravail, and KadiravaiTs complaint com-prised four charges. He charged, in fact, not only his own case,but the cases of the other three members, which were subsequentlymade the subject of the indictment. “ After the lots were drawnSegu Meedin became entitled to draw the third month’s collection,Ahamadu the fourth, Maradai the fifth. No other lots were drawn,because none of these was paid. The accused has bolted to theCoast. I contributed Rs. 240. I have not been *paid that sum orany part of it. Accused has gone away with all the stakes.”
1918*
Bsmsuir
CJ.
The King e.
VaUayan
Sittambaram
The warrant under the Fugitive Offenders Act was issued withrespect to KadiravaiTs case alone. There was nothing wrong withthis. It was quite competent to the Magistrate to choose one casefor the purpose of the warrant. But the inquiry was an inquiry intothe complaint of Kadiravail, and it was his duty, under section 156,to explain to the accused all the offences of which he was accusedin the complaint. The Magistrate confined himself to explainingthe single offence specified in the warrant. The accused thus had noopportunity of making a statement with regard to the other offeucesunder section 155, although these offences were comprised in thecomplaint. From this .point of view, therefore, there is an irregu-larity. Taken in itself, however, I do not think it would have beensuch an irregularity as to cause a failure of justice. But taken inconjunction with the refusal of the District Judge to allow the accusedto make a statement at the trial, I think that it might be consideredas an irregularity causing a failure of justice, and that on this groundthe conviction might be set aside. It is enough, however, to saythat the refusal of permission to make an unsworn statement at thetrial is itself a sufficient irregularity for this purpose.
I have considered with reference to the facts proved in the casewhether this is a case in which the Court ought to direct a new trial.The learned District Judge took a very strong view against theprisoner in the case. Mr. Bawa, on the other hand, pressed us verystrongly to acquit the accused, urging that he had paid up morethan he was ever proved to have received. The fact3 proved,though to a certain extent equivocal, do certainly lead to theImpression, in this absence of some explanation by the accused, .thathe did not pay over the pools of December, January, and February,or such amount as he had collected, because he had not got the moneyavailable, and that the reason why he had not the money availablewas that he had used it for his own purposes. But we have not gotthe explanation of the accused; an explanation was tendered atifche trial, but he was refused an opportunity of making thatexplanation. Under the circumstances, I do not think that itwould be fair to put him to the expense of a fresh trial, more
( 268 )
1918.
O.J.
The King v.
Vallayan
Sittombaram
especially when one bears in mind the fact that} whatever may havebeen his ^original default, he appears to have done his best to makegood all the sums for which he was responsible; that he has, in fact,satisfied the claims of the three persons in respect of whom thecharges are brought; and that, in the case of another member whogave evidence at the trial, he surrendered the whole of his furniturein order to satisfy his claim. I, therefore, think that no new trialshould be ordered, but that the accused should be discharged.
Ennis J.—
Certain points of law in this appeal have been referred by myLord the Chief Justice for decision by the Full Court.
For the purpose of the reference the facts are as follows. Theaccused was the secretary and stakeholder of a “ sittu ” club.There were eleven shares, and one member held three. The clubwas to continue for eleven months. For each share the holder wasentitled once to receive the full amount of the subscriptions paid onthe shares in one month. The particular shareholder to receive themonthly collection was decided by auction. The maximum sub-scription was taken to be Rs. 40 per share per month, total Rs.,440.The member who bid the smallest amount at the auction took thepool for that month. The contribution of each of the remainingshareholders being, for the month, the amount of the bid divided byeleven. These auctions took place on the 15th of each month, and itwas the secretary's duty to collect and pay the amounts by the 20thof the month, taking from the successful bidder a promissory notefor the payment of his shares in the subscriptions of the monthsyet to run.
The. first auction was in September, 1916, and auctions continuedmonth by month thereafter till February, 1917. In December oneSaibo Marikar was the successful bidder, at Rs. 355; in January,Ana Mana Ahamadu, at Rs. 365; and in February, Maradai, wife ofManthai Kandasamy, at Rs. 370.
In March the accused left for India, and one Kadiravail complainedto the Court that the accused had gone away with all the stakes.The Magistrate issued a warrant for his arrest, and the accused wasbrought back from India as a fugitive criminal.
Acting under the provisions of section 155 of the Criminal Pro-cedure Code, the Magistrate informed the accused of the.particularsof the offence with which he was charged as shown in the warrant,viz., of criminal breach of trust in respect of Rs. 240, monej' belongingto Kadiravail.
The Magistrate further informed the accused that he was preparedto hear any statement he might wish to make. Accused made astatement, which amounted merely to a denial that Kadiravail wasa-member of the club, a matter which turned out to be true, as theshare was in the name of Kadiravail's wife.
( 269 )
The inquiry was proceeded with, and the case sent to the Attorney-General, who framed an indictment of three counts -for criminalbreach of trust in respect of the funds -collected in December,January, and February. The accused was then committed fortrial before the District Court. Towards the end of the trial counselfor the accused wished the accused to be allowed to make a statement,but this was refused. The accused was convicted, and he appealed.
It was urged for the appellant:—
That' the Attorney-General had no power to frame chargesin respect of matters not within the scope of the Magistrate’sinquiry, viz., criminal misappropriation of the money ofKadiravail.
That the accused was materially prejudiced in his defenceby this being done.
These two points have been referred to the Full Court.
On the first point, I am of opinion that the Attorney-Generalmay frame a charge in respect of any offence disclosed at the inquiry.The object of the inquiry is to investigate the “ accusation, ” andthe charge is to give the accused specific notice of the offence forwhich he will be tried (compare sections 155 and 167). Section 172empowers the Court of trial to alter any charge, to substitute onecharge for another, or to add a new charge, at any time beforejudgment is pronounced. In my opinion this provision shows thatthe trial is to be concluded in respect of the offence or offences whichthe evidence discloses, and is not limited to offences which theaccusation originally disclosed. The rule in England appears to besimilar (Queen v. Brown1).
With regard to the second point, section 171 provides that noerror or omission in the charge in stating the offence or the requiredparticulars shall be regarded in any stage of the case as material,unless the accused was misled by the error or omission; section173 gives power to stay a trial should the accused be prejudiced inhis defence by an alteration of charge; and section 425 provides thatno error, omission, or irregularity in the complaint, summons,warrant, charge, judgment, or other proceedings before or duringtrial shall be a ground for altering pr revising a judgment on appeal,unless such error, omission, or irregularity has occasioned a failure ofjustice.
Sections 171 and 173 show certain kinds of error or omissionwhich, may occasion a failure of justice, viz., errors or omissionsby which the accused has been misled or prejudiced in his defence.In my opinion it is impossible to say that the accused has notbeen prejudiced by having no opportunity during the inquiry ofmaking a statement with regard to moneys contributed by membersother than Kadiravail, coupled with the subsequent refusal of the
1 (1895) 1 Q. B'll9, at Page 127.
1918.
Esins J.
The King v.
Vattayan
Sittambaram
22
( 270 )
1918.
Bnnis J.
The King v.
VaiUayanSiUambaram
Trial Judge to allow Him to make a statement. The consequencehas been that no statement by the accused on the real points againsthim was available, and he wished to make such a statement beforethe conclusion of the trial. If no objection had been taken at thetrial, it would probably have been possible to hold that he had notbeen prejudiced; but when he had something to say, which he wasnot allowed to say, because he did not wish to say it on oath, hemay have been prejudiced. I may add that, in my opinion, section155 of the Code is so worded as to show that it was intended thatan accused should be allowed to make a statement, not on oath, ifhe so wishes. I would accordingly hold in favour of the appellanton the second point reserved.
Shaw J.—
The accused-appellant was brought before the Magistrate fromIndia upon an extradition warrant charging that he “ beingstakeholder of a * sittu * club, and entrusted with Es. 240, being theamount subscribed by one A. Kadiravail of Katukele, Kandy, didcommit criminal breach of trust in respect of the same/'
The Magistrate explained to him from the warrant the particularsof the offence with which he was charged, and addressed him asprovided by section 155 of the Criminal Procedure Code. Theaccused then made the following statement: “ Complainant wasnot a member of my ‘ sittu ' club. He did not pay me money, andI did' not issue any receipts to him. I am not indebted to him,therefore I am not guilty. No witnesses. " The Magistrate thenproceeded with the inquiry under chapter XVI. of the CriminalProcedure Code.
The accused was the manager of a “ sittu M club, and it was inrespect of his conduct as such manager that the charge of dishonestmisappropriation of the money of Kadiravail was made.
In the course of the inquiry evidence was given by other membersof the “ sittu ” club, who had bought certain of the pools, to theeffect that they had had difficulties in getting the money due to themfrom the accused. This evidence was admissible under sections14 and 15 of the Evidence Ordinance, on a charge of misappro-priating the money of Kadiravail, as showing the intention of theaccused and negativing good faith on his part.
At the conclusion of the inquiry the record was forwarded to theAttorney^General, under the provisions of section 157 of the Code.The Attorney-General then settled the indictment upon which,with a few immaterial alterations subsequently made, the accusedwas charged, and directed the commitment of the accused to theDistrict Court.
The indictment dropped altogether the charge of misappropriatingthe money of Kadiravail, which, for several reasons that I need notparticularize, could not be supported on the evidence given at the
( 271 ;
inquiry, and charged him in three counts with having on or aboutDecember 20, 1916, January 20, 1917, and February 20, 1917,respectively, committed criminal breaches of trust in respect ofcertain specified sums of money, entrusted to him in his capacityof stakeholder or manager of the club, to be paid to Meera Saibo- Marikar, Ana Mana Ahamadu, and Kandasamy Maradai. Thesepersons were members of the club, who had bought the poolsfor December, 1916, and January and February, 1917, and hadexperienced difficulty in getting the amounts of their pool from theaccused.
The District Judge at the trial found the accused guilty onall the three counts of the indictment, and sentenced him to oneyear’s rigorous imprisonment on each count, the sentences to runconcurrently.
Numerous objections, both of law and on the facts, are taken tothe conviction. Of these, I need only examine one, which appearsto me to conclude the appeal. This objection is that there has beenno magisterial inquiry into the offences in respect of which theaccused has been indicted and convicted, and that these offenceswere not stated or explained to him when before the Magistrate, asprovided for by section 155 of the Code, and he has been given noopportunity to make an unsworn statement regarding them, as thesection provides. The objection is, in my opinion, fatal to thisconviction. The intention of the Criminal Procedure Code appearsto me clearly to be that, before a person shall be put on trial fora criminal offence before the District or Supreme Court, there shallbe an inquiry before a Magistrate into the alleged offence, conductedas the Code provides.
The only exception to this is provided for in section 385, namely,that the Attorney-General may exhibit to the Supreme Courtinformations for all purposes for which His Majesty’s Attorney-General for England may exhibit informations on behalf of theCrown in the High Court of Judicature. This provision has,however, no bearing on the present case, and I need not discuss towhat offences such informations apply.
It was contended on behalf of the Crown that- it is open to theAttorney-General in Ceylon, after a magisterial inquiry has beenheld, to indict the accused for any offence disclosed in the evidencegiven before the Magistrate, although the inquiry may primarilyhave been with regard to a different offence, and even one of anentirely different character. The English law, as laid down inSex v. Baker,1 was cited as an authority for the proposition;
I am unable to agree with the contention. The English procedureis governed by the English common law and statutes, and differs inmany material particulars from the procedure provided by our Code.By the English common law it was permissible for any one to
1 (1895) 1 Q. B. 119.
1918.
8haw J.
The Xing v.
Vallay anSittambanm
( 272 )
1918.
Shaw J.
The King v.
Vallay anSittambaram
prefer an indictment before a Grand Jury against another personfor any indictable offence, without any committal for trial by aJustice, and, indeed, without any inquiry before a Justice at all.This right has now been limited by the Vexatious Indictments Act,1859, and other statutes, but in many cases is still in existence.
Even supposing that the English procedure can have any appli-cation here, the case of Rex v. Brown1 does not in any way appear tosupport the Solicitor-General’s argument. Rex v. Brown1 was a caseof an indictment on a charge falling within the Vexatious IndictmentsAct, and the question arose whether it was permissible for theprosecutor to add a count for an offence not within the Act, and inrespect of which the accused had not been charged when before theMagistrates who held the inquiry. The count was, however, of acognate nature to, and based on, the same facts as the chargeoriginally made, and to which the Act applied, and was in respect ofan offence that was disclosed in the evidence given at the inquiry.
The reason the count for the new charge was held good was thatby section 1 of 30 and 31 Viet., c. 35, it is provided that the provisionsof section 1 of the Vexatious Indictments Act are not to “ extendor be applicable to prevent the presentment to or finding by aGrand Jury of any bill of indictment containing a count or countsfor any of the offences mentioned in the said Act, if such count orcounts be such as may now be lawfully joined with the rest of suchbill of indictment, and if the said count or counts be founded (inthe opinion of the Court on or before which the same bill of indict-ment be preferred) upon the facts or evidence disclosed in anyexamination or depositions taken before a Justice of the Peace.
The fact that it was thought necessary to pass this statute toallow a new charge to be added that was disclosed in the evidenceat the inquiry seems to show that in cases where indictments couldnot under the Act be presented to the Grand Jury as of right, it wasat least doubtful whether such a count could be added withoutexpress legislative authority.
The procedure prescribed by the English Indictable OffencesAct, 1848, and the provisions of our Code as to procedure atinquiries, differ in very substantial particulars, and the provisions ofsection 155 of our Code provide valuable safeguards for the assistanceof a less well-educated and less intelligent class of prisoners thanthose who generally come before the English Courts.
The provision contained in the Indictable Offences Act is that atthe conclusion of the evidence for the prosecution the accusedshall be addressed as follows:" Having heard the evidence, do
you wish to say anything in answer to the charge? You are notobliged to say anything unless you desire to do so, but whateveryou say will be taken down in writing, and may be given in evidenceagainst you upon your trial. ”
(1895) I. Q. B. 119. at page 127.
( 273 )
The provision in the Ceylon Code is: “ When the accused appearsor is brought before the Police Court, the Magistrate shall state to himthe nature of the offence of which he is accused, giving such particularsas are necessary to explain the same," and then ask for his statement,which, by another provision of the law, the prosecution is obliged toput in evidence at the trial, which is not the case in England.
1M8.
Shaw J.
The King v.
Vallay anSittambamm
The object of our provision is not merely to give the accusedan opportunity to promptly make an unsworn statement whenconfronted with the charge, which becomes evidence at the trial,but to direct his attention to the points on which he should cross-examine the witnesses and direct any evidence he may desire tocall. What is the use of explaining to him an accusation of house-breaking if he is aftewards to be indicted, on the evidenco givenat the inquiry, on a charge of murder? What useful purpose isgained by stating to him the nature of the offence of rape, if the chargemay be subsequently dropped and he may be indicted for stealingthe property of the girl’s father? In my opinion, if the evidenceat the inquiry discloses some new offence, or some offence of a moreserious nature than that with which the accused has been charged,the Magistrate should frame a new or additional charge, and againproceed under section 155, and, if necessary, recall the witnesses forcross-examination by the accused, and this is the practice commonlyadopted. If, when the record is sent to the Attorney-General atthe conclusion of the inquiry, the Attorney-General is of opinionthat the accused ought to be indicted for some other and differentoffence that is disclosed in the evidence, and which is not includedin the offence explained to the accused under section 155, he oughtto send back the case to the Magistrate under the provisions ofchapter XXXV. of the Code with instructions for further proceedings.In my opinion he has no power to indict the accused in respect ofany offence with which he has not been charged under section 155,unless such offence is included in the original offence with whichhe was so charged. The power given to this Court of trial, bysection 172 of the Code, to alter an indictment or charge and tosubstitute one charge for another in an indictment, or to add a newcharge to an indictment, is submitted as showing that it is not alwaysnecessary that the accused should be confronted with the actualoffence for which he is indicted at the magisterial inquiry. It is,however, entirely discretionary in the Court to act under thissection, and it is not, in my opinion, intended to authorize an entirelynew charge for a different offence to that which has been inquiredinto, but is intended to apply to cases where the facts given inevidence in proof of the offence inquired into Constitute a differentoffence in law to that charged in the indictment.
There having been no magisterial inquiry into the offencescharged in the indictment, the indictment should, in my opinion,have been quashed and the conviction should'be set aside.
( 274 )
iM8.
Shaw)J.
The King v*VaQayanBitUmborom
" I am quite unable to assent to the argument of the Solicitor-General that a District Court is bound to accept and proceed uponany indictment presented by the Attorney-General, without regardto whether it is authorized by law or not.
One other objection to the conviction, I may mention, which wasnot taken in the petition of appeal, but became apparent at thehearing, namely, that the Judge at the trial refused to allow theaccused to make a statement unless he did so from the witness boxand subjected himself to cross-examination. Our Code is silent asto whether or not it is open to an accused to make an unswornstatement at the trial.
Section 6 of the Code, however, provides that, as regards mattersof criminal procedure for which no special provision is made, thelaw relating to criminal procedure for the time being in force inEngland shall be applied, so far as the same shall not conflict or beinconsistent with the Code and can be made auxilliary thereto.
In England it has always been open for an accused to make anunsworn statement at the trial, should he desire to do so, and thisright still exists, notwithstanding the right of an accused to giveevidence on oath under the provisions of the Criminal EvidenceAct, 1898. In my opinion the accused has a similar right here, andthe refusal to allow him to do so is also good ground for setting theconviction aside.
Conviction quashed and accused discharged.