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VENASY v. VELAN et al.
P. C., Mctllakam, 8,091.
Criminal Procedure Code, s. 226, s. 16 of Ordinance No. 1 of 1888, and ». 352of the Procedure Code—Irregularity of deciding case upon evidence outsideit.
The necessity for the framing of a charge hy a Magistrate undersection 226 of the Criminal Procedure Code does not exist in the caseof a simple complaint, more or less in the words of a formal chargeread and explained to an accused at the commencement of the trial andadopted by the Magistrate as his charge.
Failure to give an accused an opportunity to make a statement andto question him generally as to his defence, as required by section 352of the Criminal Procedure Code and section 16 of Ordinance No. 1 of1888, amounts to a fatal irregularity only if he were an ignorant andilliterate person and destitute of legal assistance at the trial.
Each case must be decided solely upon evidence recorded therein,without reference to any other case.
Tissera v. Foster (9 S. C. C. 173) distinguished.
rpHE facts of the case are stated sufficiently in the judgment-1- of his Lordship the Chief Justice.
Blase and Aserappa, for the appellant.
1st July, 1895. Bonser, O.J.—
This is an appeal from a conviction of Mr. Kathiravelupullai,Police Magistrate at Mallakam, on points of law.
He convicted the appellants of an assault, and fined themRs. 10 and Rs. 5 respectively. They can only appeal on groundsof law.
The. first objection is, that the Magistrate did not frame acharge.
What happened was this. A written plaint was filed by thecomplainant, charging the accused “with voluntarily causing“ hurt and thereby committing an offence punishable under section“ 314 of the Penal Code.” That plaint was read over and explainedto the accused at the commencement of the trial, but no freshcharge was framed by the Magistrate.
I cannot see that that was necessary. We have here in writingan accusation, which has all the requirements of a charge, andthe Magistrate adopts that as his charge.
It is said that section 226 of the Procedure Code requires himto write that out again, and that there is a decision of this Court—Tissera v. Foster, 9 S. C. C. 173—which renders such a coursenecessary.
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Bat in that cade, it will be seen, that the complaint was <895.not a Bimple complaint like the one in the present case, bnt a bonseb. C.J.complaint embodying charges under three different enactments.
In that case the prisoner was fonnd guilty of one only of theoffences complained of. Again, the complaint was explainedto the defendants on one day and the trial took place on a subse-quent day.
That is qnite a different case from the present, in which wehave a simple complaint almost in the very words of a formalcharge, and which is read over and explained to the prisoner at the
commencement of the trial.
But, however that may be, whether Tissera v. Foster wasrightly decided or not, or whether it can be distinguished from■ the present case, I am of opinion that there is not the slightestshadow of a reason for suggesting that the accused were in anyway prejudiced by the omission, and therefore (whether theobjection be a good one or bad one) I decline to set aside theconviction on that ground.
The next objection was, that the Magistrate did not observe theequirements of section 352 of the Code and section 16 of Ordi-nance 1 of 1888, that he did not give the prisoners an opportunity ofmaking a statement, or question them generally as to their defence.
This, no doubt, was an irregularity, and, had the appellantsbeen ignorant and illiterate persons without legal assistance, Ithink that the objection would have been a substantial one, butin the present case the interests of the accused were protected bytwo legal practitioners who appeared for them. Under thesecircumstances I think that there is no ground for saying that theaccused were prejudiced by the irregularity.
The third objection is this, that the trial having taken place onthe 4th of May the Magistrate did not convict until the 11th of May.
Now, I have already stated in another case that I think it mostdesirable that Magistrates and District Judges should state theirfinding as to the guilt or innocence of the accused immediatelyat the conclusion of the trial, and that, if the impression left upontheir minds by the prosecution, after hearing all the evidence, is soweak and unsatisfactory that they are unable to say whether theyconsider the accused to be guilty or not, they should give theaccused the benefit of the doubt and acquit.
The Magistrate in this case has forwarded his explanation ofthe delay.
It appears that the 11th was the next Court day at Mallakam,and that he waited to give judgment until he had heard a con-nected counter case.
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It would appear from this that he did not decide the case onthe evidence recorded in the case solely, but on that evidencecombined with the evidence taken in some other proceedings. Ifthat is so, the conviction cannot stand.
Cases must be decided on the recorded evidence withoutreference to other cases.
VENASY v. VELAN et al