42 WUEYEWARDENE J.—Thomas v. Inspector of Police, K. Ottawa.
1945Present: Wijeyewardene J.THOMAS, Appellant, and INSPECTOR OF POLICE,
K OTTAWA, Respondent.
624—M. C. Colombo, 30,603.
Charge—Report against accused under section 148 (2) (6) of the CriminalProcedure Code—Accused already present in Court under Fiscal'scustody—Charge framed without prior examination under section 181 (2)of the Criminal Procedure Code—Not a fatal irregularity—CriminalProcedure Code, ss. 126a, 148 (J) (6), 151 (2) and 187 [1).
Where a police officer filed a report under section 148 (1) (6) of theCriminal Procedure Code against tbe accused ■who was already presentin Court in the custody of the Fiscal by virtue of an order made undersection 126a of the Criminal Procedure Code—
Held, that “the failure of the Magistrate to comply with the requirementsof section 187 (1) of the Criminal Procedure Code before he framed acharge against the ac<4used was not a fatal irregularity.
PPEAL against & conviction by, the Magistrate of Colombo.
H. W. Jayewardene, for the accused, appellant.
A. C. Ameer, C.C., for the Crown.
Cur. adv. vult.
September 11, 1945. Wueyewabdene J.—
A Police Officer, submitted a report to the Magistrate under Chapter 12of the Criminal Procedure Code and at the same time produced the
Chow v. de Alicia IPrice Control Inspector).
accused before the Magistrate under section 126a (1). Acting undersection 126a(2) the Magistrate authorised the detention of
the accused till January 4, 1944. On January 4, the Police Officerinstituted proceedings 4jy filing a report under section 148 (1) (6) dis-closing an offence under section 315 of the Penal Code and the Magistrateframed a charge and read it to the accused who was present. Theaccused pleaded not guilty and he was tried on a subsequent day.
Mr. H. W. Jayewardene contends that section 187 (1) empowers theMagistrate to frame a charge only “ after the examination directed bySection 151 (2) ” and that the conviction in the present case is bad in theabsence of such an examination. I am unable to uphold that contention.On the receipt of the written report under section 148 (1) (6) the Magistratecould have issued summons on the accused under section 151 (ii) withoutexamining any witness, and when the accused appeared on such summonsthe Magistrate could have framed a charge forthwith under section 187 (ii).In such a case, therefore, there would have been no examination of anywitness before the charge was framed. That is exactly what happenedin the case though, of course, here no summons was issued because theaccused was present at the time the report was filed. I do not thinkthat the failure to comply with the requirements of section 187 (1) couldbe regarded in these circumstances as anything more than an irregularitywhich has not caused any prejudice to the accused. I note that theaccused was defended in the Magistrate’s Court by an Advocate and aProctor and the point of law now argued in appeal has not been raised inthe petition of appeal.
On the facts I have reached the same decision as the Magistrate withregard to the guilt of the accused and I see no reason for interfering withthe sentence passed by the Magistrate. I
I dismiss the appeal.
THOMAS , Appellant, and INSPECTOR OF POLICE, KOTTAWA, Respondent