WEE"RASOOB>r5fA, J.—'Pikiri Banda v. Perin^panayagant
1959Present: Weerasooriya, 3,
TIKIRI BANDA, Appellant,cmd T. PERIMPANAYAGAM (SX, Police),
P. C. 790—M. C. Kummegala, 42487
Criminal Procedure Gods—Presence of accused “ on Police bail ”—Charge framedon hearsay statements—-Irregularity—Sections 151 (2), 187 (1).
Where an accused person is brought before a Magistrate’s Court otherwisethan on a summons or warrant, the requirement of section 187 (1), read withsection 151 (2), of the Criminal Procedure Code that the Court should examineon oath a person or persons able to speak to the facts of the case excludeshearsay statements being acted upon. In such a case, therefore, it would bea fatal irregularity if the Magistrate frames a charge solely upon the state-ment on oath of a police offieer who speaks only of information received byhim from other persons of the commission of an offence by the accused.
fAPPEAL from a, judgment oi the Magistrate’s Court, ELurunegala.
A. Nagendra, with D. W. Abeykoon, for the accused-appellant.
V. S. A. Pultenayeg-um, Crown Counsel, with P. Nagendran, CrownCounsel, for the Attorney-General.
Cur. adv. wilt.
December 7, 1959. Weejrasookiya, J.—
The accused-appellant was convicted of offences punishable undersections 43 and 44 of the Excise Ordinance (Cap. 42) and sentenced tosix months’ rigorous imprisonment in respect of each offence, thesentences to run concurrently. As he pleaded guilty to the charges noappeal lies against the convictions except on a matter of law. The onlypoint of law certified in the petition of appeal is without any substance^and the appeal must, therefore, he dismissed.
But learned counsel for the accused, relying on the decision in MoMdeere-v. Inspector of Police, Pettah1, submitted that notwithstanding the plea ofguilty tendered by the accused his convictions are vitiated by reason ofthe Magistrate’s failure to comply with the provisions of section 187 (1) ofthe Criminal Procedure Code in regard to the framing of the charges, andon that ground invited me, in the exercise of my powers of revision, toset aside the convictions and remit the case for a fresh trial in accordancewith law.
1 (1957) 59 N. L. P. 217.
WEERASOORIYA, J.—Tikiri Banda v. Perimpanayagam
It appears from the record that on the 17th November, 1958, when thetrial took place, the accused was present £I on Police bail ’ ’ and, therefore,otherwise than on summons or warrant. Section 187 (1) of the CriminalProcedure Code requires the Magistrate in such a case to hold theexamination directed by section 151 (2) and to frame a charge thereafterit he is of opinion that there is sufficient ground for proceeding againstthe accused. The examination directed under section 151 (2) is anexamination on oath of the person who has brought the accused beforeCourt and of any other person who may be present in Court able to speakto the facts of the case. Purporting to act under section 151 (2) theMagistrate examined Police Sergeant Perera of the Kurunegala Policewho was present and whose evidence is as follows :—
s’ On 14.11.58 whilst P. C’. 5307 and 2258 were on patrol duty theyreceived information to the effect that this produced accused wasmanufacturing arrack. They proceeded to Hanwella and at a distancethey noticed some smoke going up from the jungle and they quietlyapproached the place and found the accused manufacturing arrack.They arrested the accused in the act with utensils and also found6 drums of arrack. The accused was taken into custody withproductions and produced at station.55
On this evidence, which is plainly hearsay, the Magistrate proceeded toframe the charges to which the accused pleaded guilty.
Mr. Nagendra for the accused submitted that in order to frame acharge Under section 187 (1) there should be legally admissible evidenceon which the Magistrate can form an opinion that there is sufficientground for proceeding against an accused. Crown Counsel contended, onthe otheT hand, that in holding an examination under section 151(2) theMagistrate may act on hearsay evidence. No previous decision of thisCourt directly in point was cited to me by counsel, but despite the absenceof authority I have no hesitation in taking the view, on a considerationof the relevant provisions of law, that the procedure adopted by theMagistrate in the present case is irregular.
Sections 150 and 151 of the Criminal Procedure Code set out the stepsto he taken by the Court after the institution of proceedings and beforethe issue of process. Section 150 provides that where the offence allegedin any proceedings instituted under section 148 (1) (a) or section 148(1) (&) is an indictable one the Magistrate may, although no person byname is accused of having committed such offence, examine on oath thecomplainant or any other person able to speak to the facts of the case.Such examination may be held in private. If after such examination theMagistrate considers there are sufficient grounds for proceeding against-any person, he is required to issue process against such person. Section151 (2) provides that where proceedings have been instituted on anyperson being brought before a Magistrate’s Court in custody withoutprocess accused ot having committed an offence which such Court hasjurisdiction to inquire or try. the Magistrate shall forthwith examine on
WEBB,ASOORIYA, J.—Tikvri Bandit v. Pervmpanayagam
oath, the person who has brought the accused and any other personpresent and able to speak to the facts of the case. Under section 151Bsuch examination may be held in private.
In my opinion these provisions, in which the emphasis is on anexamination on oath of a person or persons able to speak to the facts ofthe case, exclude hearsay statements being acted upon for the purpose ofany action that may be taken under them. Therefore, section 187 (1) ofthe Criminal Procedure Code, which requires ike holding of the examina-tion directed by section 151 (2), was not complied with by the Magistratewhen he proceeded to frame a charge against the accused on the evidenceof Police Sergeant Perera. If there was no person present in Court ableto speak to the facts of the case the Magistrate should have secured theattendance of such a person and examined Lim before framing a chargeagainst the accused.
In Mohideen v. Inspector of Police, Pettah, (supra) it was held that non-compliance with section 187 (1) is a fatal irregularity. Acting in revisionI set aside the convictions of the accused and the sentences passed onhim and I send the case back for a tresb trial before another Magistrate.
Gase sent bach for a fresh trial.
TIKIRI BANDA ,Appellant, and T. PERIMPANAYAGAM (S. I. Police), Respondent