114-NLR-NLR-V-61-THE-ATTONEY-GENERAL-Appellantand-M.-D.-J.-SILVA-Respondent.pdf
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M. MT. G. i*'JSKJTANDO, J.—Attorney-General v- Silva
Present: H. TS. G. Fernando, J.
THE ATTORNEY-GENERAL, Appellant, and M. D. J. SILVA,
Respondent
S. O. 453—M. G. Kurunegala, 32206
Charge—Summary procedure—Failure to frame charge properly—Discovery of itafter closure of defence—Resulting position—-Criminal Procedure Code,ss. 187, 190.
Where, in a summary trial, after the closure of the case for the prosecutionand the announcement by the defence not to lead evidence, it was discoveredthat the so-called “ charge sheet ” was a mere blank form which containedno charge but only the record of the accused’s plea of not guilty—
Meld, that the proper order which the Magistrate could have lawfully madeat that stage was one of acquittal under section 190 of the Criminal ProcedureCode.
A
taPPEAL from a Judgment of the Magistrate’s Court, Unranegala.
Ananda Pereira, Crown Counsel, for the Attorney-General.
A. H. C. de Silva, Q.Q., with M. M. Kumaralculasingham, for theAccused-Respondent.
Cur. ado. vult.
April 24,1959. H. N. G. Feknastdo, J.—
The accused in this case was alleged to have committed certain offencesagainst the Betting on Horse-Racing Ordinance. A report in thatbehalf under Section 148 (1) (&) of the Criminal Procedure Code wasmade to the then Magistrate of Kurunegala on 18th June 1957, and a 1
1 (19*1) 49 N. L. R. dll.
H. 17. 6. FDBNA11DO, J.—A-ttomey-General v. Silva45 .
charge was framed on the same day, bat the trial was postponed morethan once, apparently upon application made by the prosecution. On31st January 1958, the prosecution successfully moved to amend theirplaint and a fresh report under Section 148 (1) (6) was filed. The sameMagistrate then recorded the evidence of the Police Officer (who filed thereport), and thereafter made the following entry on the record :—“ Theaccused is now charged from the amended charge sheet. He states* I am not guilty ’. Trial on 24.3. ” On that date, the trial was a.ga.inpostponed for 12th May 1958, also upon an application by CrownCounsel. The evidence for the prosecution was heard on 12th Mayand on 18th June by the new Magistrate and the case for the prosecutionwas closed.
The accused was then called upon for a defence, but no evidencewas led on his behalf, and the accused’s counsel addressed the Magistrateon the facts. The learned Magistrate thereafter discovered that theso-called “ amended charge sheet ” was a mere blank form which con-tained no charge, but only the record of the accused’s plea of not guilty,and invited the assistance of Crown Counsel in the situation that hadarisen. Crown Counsel apparently argued that Section 187 of the Codedoes not require a charge to be written, that although in this case theMagistrate was bound to frame a charge himself and not merely to readparticulars from the police report, he could nevertheless have framed it“ mentally ”, and that (having so framed it) he had in reciting such acharge to the accused complied with his duty (Section 187 (3)) to readthe charge to the accused. This argument was properly rejected bythe Magistrate. It is quite ridiculous to suggest that anything can beread which is not already in writing or in print. In the result, no chargewas framed and read to the accused and Section 425 (also relied on by theCrown Counsel) does not assist to cure the omission—Ebert v. PereraKIndeed the Attorney-General on his present appeal does not adopt anyof these arguments.
In these circumstances, the learned Magistrate decided that he hadno alternative but to make an order of discharge, and this appeal isagainst that order. The position for the Crown now is that when theMagistrate who tried the case discovered his predecessor’s failure dulyto frame and read the charge he should himself have treated theproceedings as null, have framed and read a charge to the accused and thenproceeded to hold a fresh trial. The reported case to which I havereferred above appears indirectly to support this contention. There,there had been a trial and a conviction in a case where the Magistratehad, instead of framing the charge himself, irregularly read a statementof the offence from the police report. This Court quashed the con-viction but remitted the case for further proceedings ; so that in effectthis Court sanctioned the framing of a fresh charge and a subsequenttrial. The correctness of such a course is however rendered doubtfulby reason of the fact that there is no express provision in the Codeempowering an order of discharge to be made at a stage subsequentto the closure of the case for the prosecution and the leading of defenceevidence or the announcement of the defence not to lead evidence.
1 {1922)23 N. L. B. 362.
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H. N. G. FERU4JNDO, J.—A ttomey – General v. Silva
I have referred in a recent judgment in the case of Premadasa v. Assen1(Unreported) to other decisions of this Court -which, have taken noteof the consequences of the absence from the Code of such express provi-sion. 1 agree that -the-question-whether amorder of discharge, and notof acquittal could properly be made in the circumstances of the presentcase is one which would merit consideration by a fuller bench. Butthe history of this case as outlined in the opening paragraph of thisjudgment will show that a charge of a comparatively minor nature hasbeen pending against the accused for nearly two years. Consideringalso the Magistrate was not himself invited by the Crown to take freshproceedings I am not disposed to order that the accused be again putin peril of conviction. In accordance therefore with the view I haveexpressed in the unreported judgment I shall regard the Magistrate’sorder of discharge as entered under Section 190 and as being -the onlyjawful order that could have been made. I therefore dismiss this appeal.
I feel compelled in conclusion to condemn most severely the practice(I do hope it has been rare), the existence of which has been revealed inthis case. Ennis, J., pointed out in Ebert v. Perera (supra) that “ theformulation of the charge or statement in a summons or warrant on areview of the facts by an independent person is, in my opinion, afundamental principle in our criminal procedureIt is in consonance
with that fundamental principle that Section 187 (1) directs the Magistratehimself to frame a charge in a case where the accused appears otherwisethan on summons or warrant. The Proviso to Section 187 (3), in per-mitting the use of the particulars stated in the police report in a caseof minor importance, lends emphasis to the earlier substantive require-ment that the Magistrate must bring an independent mind to bear onthe matter of the formulation of the charge and not rely on a reportdrafted by some other person. Such a requirement was surely dis-regarded when the Magistrate in this case hastily stated some particularsto the accused without troubling to make any contemporaneous recordof what he stated or was about to state. One has no means of ascertain-ing what was stated to the accused by the Magistrate when he purportedto read a charge to the accused. If his intention was that the blank formwould be filled np later, what guarantee was there that the particularsfilled in subsequently would be identical with the particulars which heread to the accused .? It is fortunate that the Magistrate or his clerkfailed to carry out the illegal intention to rectify in chambers or in theoffice the slipshod procedure which had been adopted on the bench. Butfor that failure the illegality might well have passed unnoticed.
Appeal dismissed.
1S.C. 795158, M. G. Colombo No. 35541c, (S. C. Minute of 19.3.59) 60 N. h. -R- 451)