SOEBTSZ J.—Vargheese v. Perera.
Present: Soertsz J.VARGHEESE v. PERERA.' 588—M. C. Colombo, 43,733.
Criminal Procedure—Accused brought in custody—Report of officer producingaccused—Failure to examine officer—Charge read from report—Fatalirregularity—Criminal Procedure Code 151 (2).
Where proceedings commenced before the Police Court on the reportof a public officer who brought the accused in custody to Court,—
Held, that the failure of the Magistrate to examine the officer in termsof section 151 (2) was a fatal irregularity.
.In such a case it was competent to the Magistrate to charge the accusedfrom the report only after observing the requirements of section 151 (2)and only if the offence disclosed was one punishable with not more thanthree months’ rigorous imprisonment.
PPEAL from a conviction by the:'Magistrate of Colombo.
October 9, 1942. Soertsz J.—
The accused-appellant in this case was convicted of an offence incontravention of section 28 of the Poisons, Opium and Dangerous DrugsOrdinance, punishable under section 76 (5) (a) of that Ordinance, on hispleading guilty to a charge framed by the Magistrate and read to him.
He had two previous convictions, and in view of the large quantity ofthe offending substance found in his possession, he was sentenced to aterm of one year’s rigorous imprisonment.
He now appeals on a matter of law, contending that the conviction wasbad in that, in the circumstances of this case, there was,, in reality, nocharge, because the charge framed against him was framed in violation ofan imperative requirement of the law. The circumstances are these : —On the day the appellant was convicted, the prosecuting officer made areport to the Court in terms of section 148 (b) of the Criminal Procedure
H. W. Jayewardene, for accused, appellant.
H. A, Wijeyamane, C.C., for complainant, respondent.
Cur. adv. vult.
De Silva v. Weerappa Chcltiar.
Code, and at the same time produced the appellant in custody beforethe Court. The resulting position was that covered by section 151 (2),and it was, therefore, incumbent on the magistrate “ forthwith toexamine on oath the person who brought the accused before the Courtand any other person who may be present in Court able to speak to thefacts of the case The record of this case does not disclose the presenceof any such person as is contemplated in the second part of the sectionI have just quoted from, but it is perfectly clear that there was in Courtthe person who brought the accused before the Court.
The Magistrate, however, failed to examine him but framed a charge,in the sense that he transcribed on a charge sheet form what appearedin the report to Court, and then read it out to the accused and, interms of section 188 of the Code, asked him if he had any cause to showwhy he should not be convicted.
In doing this, the Magistrate erred in two ways. He disregarded theimperative requirement of section 151 (2), and he, in effect, charged theaccused from a report which he could have done, in a case like this, onlyafter observing section 151 (2) and only if the offence disclosed was onepunishable with not more than three months’ imprisonment. This wasnot such an offence.
There was, therefore, no valid charge and that is as bad as if there wasno charge at all. Such a state of things cannot be disposed of as involvingan irregularity curable under section 426 of the Code. It is an illegalityand is fatal to the conviction.
I have, therefore, no alternative but to quash the proceedings that tookplace, and remit the case for trial in the manner required by the law.
VARGHEESE v. PERERA