A. MOHIDEEN, Appellant, and INSPECTOR OF POLICE, PETTAH, Repondent

055-NLR-NLR-V-59-A.-MOHIDEEN-Appellant-and-INSPECTOR-OF-POLICE-PETTAH-Repondent.pdf

BASXAYAKE, C-J-—Mohidccn v. Inspector of Police, Petlah
217
Presenl^'Ba.s nay a he, C.J., Pulle, J., and K. D. de Silva, J. ' ..
A. MOHIDEEN, Appellant, and INSPECTOR OF
POLICE, PETTAH, Respondent.
S. G. 1345—21. C. Colombo, 19,862/B.
Criminal ’Procedure. Code—Accused produced in custody without process—Report' .- filed by police officer who produced the accused—Duty of Magistrate to record
. evidence before framing charge—Sections J26 A (7 and-2), US (/) (b), 148 (1) (d),
■151 (2), 187 (1), 425..
■ Held (Pcixe, J"., dissenting), that where an accused is brought before the. Court in custody without process and a-report under section 14S (1) (6) of theCriminal Procedure Code is filed, the failure of the Court to record evidenco. on oath, as required by sections 151 (2) and 187(1), before a charge is framodagainst the accused is an irregularity that cannot bo cured by applying theprovisions of section 425 of the Cotie..
A
IaPPEAL from a judgment of the Magistrate’s Court, Colombo. Thisappeal was referred to a Bench of three Judges under section 48 of theCourts Ordinance..
' On August 20, 1955, a Police Sergeant submitted to the Magistrate areport- of an investigation into a cognizable offence and at the same timeproduced the accused in Court in terms of section 126 A (1) of the CriminalProcedure Code. The Magistrate, acting under section 126 A (2), re-manded the accused to the custody of the Fiscal till August 22, 1955.On August 22, the Police Sergeant instituted proceedings against theaccused by filing a report in terms of section 148 (1) (b) of the Code. -When the report was filed the accused was present in Court under Fiscal’scustody. The Magistrate then framed a charge against him to which – ’he pleaded “Not guilty”. Subsequently he was tried and convicted.-The accused appealed, and the question for decision was whether theMagistrate should have recorded evidence on oath in terms of section 151
of the Code before he proceeded to frame a charge against theappellant.
A. Nagendra, for the accused-appellant.• –
St. G. B.- Jansze, Q.G., Acting Attorney-General, with V. S. A.Pullenayegum, Crown Counsel, for the complainant-respondent.
'"-.Cur. adv. vult. "
December 9, 1957. Baskayake, C.J.-—- .; .
I have had the advantage of reading the Judgment prepared by my .brother do Silva: – As the question that arises for consideration on thisappeal is oiie'of some ^importance/ instead of recording my bare concur-.'rence I wish to add my'bwn* views as briefly as possible on; certain, aspectsof the question dealt with in my brother’s* Judgment.- ' – – -—
, -10xix ’-
■ 2-J. N.B 1245—1,503 (l/5S)r
2 ISBASNAYAKE, C.J.—Mohidccn v. Inspector of Police, PeitaJi.
The report under section 148 (1) (6)'of-the Criminal Procedure Codwas preceded by a foport of an investigation into a cognisable offericunder section 126 A (1) of the Code. In that report Sub-Inspector oPolice W. F. S. Pbiris, who doos not state that he is an officer in chargeof a Polico Station, purported to summarise the statements of tho witnossos examined in tho course of tho investigation. On that report tinMagistrate made an ordor undor sub-section (2) remanding tho accuscctill 22nd August. On that day a roport under section 148 (1) (b) wasfiled, and the accusod who was present in Fiscal’s custody was chargedfrom the charge sheet under section 187. Now, section 187 of theCriminal Procedure Code requires that where an accused is broughtbeforo the court otherwise than on a summons or warrant the Magistrateshall after tho examination directed by soction 151 (2), if he is of opinionthat thcro is sufficient ground for proceeding against tho accused, framea chargo against him. It has been held in a number of decisions of thisCourt, the chief of which is Ebert v. Pcrera 1, that the provisions ofsection 187 are imperative, and that failuro to comply with the require-ments of that section cannot be cured under section 425 of the CriminalProcedure Code. It is urged on bohalf of the Crown that, where anaccusod is brought beforo the court in custody and a report under section148 (1) (b) is filed, tho provisions of section 151 (2) are not a3 a rulecomplied with. The practice is to frame tho charge against tho accusodand read the chargo as required by soction 187 (3). If the provisionsof section 187 are imperative, as I think they are, it is difficult to resist■ the conclusion that tho requirement that the Magistrate shall ascertainwhether there is sufficient ground for proceeding against the accused aftertho examination directed by section 151 (2) is also imperative. Thefact that a practice which is contrary to the section has grown is noground for holding that that practice is legal. A practico howeverinveterate cannot alter the law. Section 14S prescribes the mothodsby which proceedings in a Magistrate’s Court may be instituted. -yPhelearned Attorney-General argued that proceedings may bo institn-Vcl inmore than one of the ways prescribed. I am unablo to agree with thatcontention, Tho opening words of the section are : c‘ Proceedings ina Magistrate’s Court shall be instituted in ono of the following waysTo give effect to the learned Attorney-General’s contention it wouldbo nocossary to interpolate tho words “ or more ” bctwcon tho word“ one ” and tho word “ of ”. Tho rules of construction of statutesdo not permit such a courso. Jf it lias been the practice not to observetho requirement of that section but to institute proceedings in morothan ono of the prescribed modes it should cease. In the instant casowhen the accused was brought before the court from Fiscal’s custodyaccused of having committed tho offences referred to in the reportunder section 126 A, he was brought boforo tho Magistrate of tho court,in custody without process, accusod of having committed offenceswhich such court had jurisdiction to inquire into. Bo that asit may, the question whother proceedings wero instituted under section148 (1) (d) or 148 (1) (b) is of little importance in this case as admit tedlytho accused was brought before tho court otherwise than on a summons
1 {1922) 23 N. L. B. 302.
■BASNAYAKE, C.J.—Slohideen v. Inspector of Police-, Peltah219
■ or warrant. In such a case clearly the procedure under section 187must bo followed. The word " brought ” in that section does not mean' brought by a Police Officer, but compelled to attond either by virtueof the fact that he is in Police custody and is forwarded to court or isaccompanied by a Police Officer or is compelled to attend by virtueof having executed a bail bond under section 120 A or section 127. Thelearned Attorney-General contended that “ brought before the court ”would include cases in which the accusod happens to be in court on hisown business, whereupon he may bo charged by the Magistrate if heconsents to be charged. I am unable to agree that a person who happensto be in court on some private business of his can suddonly bo calledupon to answer a charge of which ho has not been given notice. Thelaw provides that when criminal proceedings are instituted under section148 (1) (a), (b), or (c), the Magistrate shall, if ho is of opinion that thereis sufficient ground for proceeding against some person who is not incustody, if tho case appears to be one in which according to the fourthcolumn of the First Schedule a summons should issue in tho first instance,issue a summons for the attendanco of such person, or if tho case appearsto be ono in which according to that column a warrant should issuein the first instanco, issue a warrant for causing such person to be broughtor to appear before tho court at a cortain time. In evory case underparagraph (a) or (b) of section 14S (1) before issuing tho warrant hemust examine on oath the complainant or some material witness. Ifhe is so minded he may before issuing even a summons examine onoath the complainant or some material witness. These are very necessarysafeguards which are provided by law in the public interest. The accusedperson should have warning of the charge that is going to be laid againsthim ; he should havo an opportunity of resorting to legal advico. Itis unthinkable that a person who happens to bo in court on other business •.should bo suddenly put into the dock and called upon to answor a criminalcharge without being afforded an opportunity of taking legal advice.
I do not think therefore that it is open to a Magistrate to frame a chargeagainst a person under section 187 except where he has been broughtbefore tho court in one of the wajrs contemplated by tho Criminal Pro-cedure Codo or where ho appears on a summons or w-arrant:Tho safe-
guard of an examination as directed by section 151 (2) before tho charge .is framed is a most salutary one because a citizon should not bo madeto face a criminal charge except where there is ground for placing himin peril. It was urged that tho adoption of the procedure prescribedin section 151 (2) before framing a charge is- inconvenient and wouldcreate difficulties.. I am unable to agree that this is a considerationwhich can-affect the interpretation of section 187. Provisions such'as are prescribed in the Codo for safeguarding the rights of citizensmust be strictly observed, and non-compliance with such provisions -can bring about only one result and that is to render proceedings void.
. ‘ The learned Attorney-General argued that even if the. true construe;tionof section 187-was that the. examination directed by section 151 (2) ..“should precedethe framing ;of the charge, section 425 applies to .this .;>case, and that ; the'.‘omission to carry out' the" requirement' ‘of. section ’ .151 (2) would, not. be^such an m-egidarity. as would enable this’ CourtI I
220BASNAYAKE, CJ.J.—H/ohidccn v. Inspector of Police, Peitahy :-_L '
• to reverse or alter in appeal the judgment of the Magistrate unless itoccasioned a failure of justice. – He relied on the words " no judgmentpassed by a court of competent jurisdiction shall be reversed or alteredon appeal or revision on account of any error, omission, or irregularityin the complaint, summons, warrant, charge, judgment, or other pro-ceedings before or during the trial unless such error, omission,irregularity,or want has occasioned a failure of justice ”, He stated that the instantcase fell within the ambit of the words “ other proceedings before trialHe submitted that we were not free to set aside this conviction as theomission of the Magistrate has not occasioned a failure of justice.
I am unable to agree that a failure to comply with the imperativerequirement of the Code in regard to the framing of charges is an omissionor irregularity within the ambit of section 425. Disregard of the pro-visions of an enactment such as the Criminal Procedure Code, especiallya provision such as section 187 the observance of which is a conditionprecedent to a summary trial, cannot be regarded as an “ omissionin the complaint, summons, warrant, charge, judgment, or other pro-ceedings In my opinion section 425 was not designed to apply to acomplete disregard of the imperative requirements of the Code. Itseems to me to have been designed to apply to errors, omissions orirregularities other than disregard of the imperative provisions of theCode. Failure to observe provisions which arc intended for the benefitof the citizen and are in the interests of justice, especially in criminalstatutes, must be presumed to occasion a failure of justice. It is notnecessary for the party seeking relief to establish that the failure toobserve an imperative requirement of the Code lias occasioned a failureof justice. As in the case of atrial to which the Court of Criminal AppealOrdinance applies, a wrong decision of law is a sufficient ground forsetting aside a conviction unless the prosecution is in a position to establishthat no substantial miscarriage of justice has actually occurred.
The words “ subject to the provisions hereinbefore contained ” insection 425 remain to be considered. They have not been the subjectof interpretation in any reported case previous^ decided by this Court. Myown view is that those words are designed to embrace the sections ofthe Code which occur before section 425 and not only the provisionsof sections 423 and 424. The learned Attorney-General submittedthat those words applied only to the two preceding sections in ChapterXLII, but I am unable to agree with him. The word ” hereinbefore ”is a word of wide import and would ordinari^, in the absence of anycontrolling words in the context, apply to all that has gone before. Inthis context there is nothing that limits its meaning. On the otherhand its association with the words “ provisions ” and “ contained ”on either side of it leaves no room for doubt as to its meaning. In Indiathere has been a difference of opinion as to whether the word“ hereinbefore ” occurring in the corresponding section of the IndianCriminal Procedure Code has reference to all the provisions precedingthe section or only to the two sections immediately preceding it. InRam Subkag Singh v. Emperor1 it has been hold by the High Court of
(1916) A. I. if. Calcutta 693, at 701.
PUI-.LE, J”.—Mohideen v. Inspector of Police, Pcttah
22
Calcutta that it refers to only the two preceding sections but a contraryview has been taken in the case oiRaj Chunder Mozumdar v. Gour ChundeiJlozumdar 1, and in Nilraian Sen v. Jogesh Chnnder Bhattacharja 2. Thaiview has also been approved in the Pull Bench decision in the matteiof Abdur Rahman and Keramal 3, and in the Privy Council decision olSubramaniam Iyer v. King Emperor 4. In the last mentioned case itwas held that disobedience'of express provision as to the mode of trialcannot bo regarded as a mere irregularity. The Cord Chancellor inthe course of his judgment said that, “the remedying of mere irre-gularities is familiar in most systems of jurisprudence, but it would boan extraordinary extension of such a branch of adminstering the criminal" law to say that when the Code positively enacts that such a trial as thatwhich has taken place here shall not bo permitted that this contra-vention of the Code comes within the description of error, omission,or irregularity The Cord Chancellor stated in support of his viewthe observations of Cord Herschell, and Cord Russel? of Killowen,hi the case of Smarthicaile v. Hannatj 5 wherein Cord Herschell saidwith reference to joinder of plaintiffs : “ If unwarranted by any enact-ment or rule, it is, in my opinion, much more than an irregularity. ”
I am of opinion therefore that the case of Vargheese v. Perera 6 hasbeen rightly decided and that the appellant is entitled to succeed. .
The next question is whether in allowing the appeal we should directa. retrial or acquit the accused. I think the facts deposed to by thewitnesses disclose a very grave crime for which the accused should betried in the manner provided by the Criminal Procedure Code.
PULLE, J.
I have the misfortune to arrive at a decision in this appeal whichdoes not commend itself to my brethren. In regard to two incidentalmatters arising out of the question—whether the charges against theappellant were framed after due compliance with the requirementsof the Criminal Procedure Code—I am, if I may be permitted to say so,in complete accord with the opinions expressed by them. The first.is that if the Code ordains a procedural step to be taken preliminary tothe framing of a charge, the failure to take that step would vitiate thecharge. The second which is a corollary to the first is that a convictionupon such a charge cannot on an appeal be allowed to stand by invokingthe provisions of section 425. A charge, bad in law is not a mereirregularity which can be cured.
On the day the appellant was taken before the Magistrate in custodywithout process the accusation against him. was set forth in a writtenreport purporting to’be 'under section 148 (1) (b) which was acceptedby.jhe Magistrate.. In my opinion proceedings were instituted in" theMagistrate’s Court against the appellant when the report under sec-tiorr 148 (1) (6) was“"accepted by the court as At is undoubtedly.’one'1'
-"1 (1894) 22 Calcutta 177.'' ;'.(1901) 2S'l,:'K. T::a(267^^M
-3 1 Calcutta Weekly Holes 57.:r; 5 1S94 A.O. 494. Aiztv
, ;3 (1900) 27 Calcutta 840 at 847A;f :. "Av ::i * (.1942) 43 17.15(11.564.^^^1
■222
K. D. DE SILVA, J.—SUohideen v. Inspector of Police, Pettah
of the ways of instituting a proceeding. Section 126A provides forthe remand of a person from time to time pending an investigationunder Chapter XII. If the argument is valid that when the appellant,who was on remand pending sucli an investigation, was produced on 22ndAugust, 1955, there was an institution of proceedings under section 14S(1) (d), it must follow that even on the very first occasion he was pro-duced under section 12GA (1), the court.had no alternative but to takethe evidence required by section 151 (2) and to frame a charge undersection 187 (1). It would serve no purpose, if the investigation is in-complete, to embark on a trial ; or to embark on an inquiry, if the offenceunder investigation, still incomplete, is an indictable one. I think that,so long as an inquirer is exercising the powers conferred on him byChapter XII, it is open to him to cause proceedings to be institutedunder section 14S (1) (6). The bare fact that in juirsuance of an earlierorder of detention the appellant was produced on 22nd August, 1955,did not make the “ institution " of proceedings any the less one undersection 14S (1) (b).
If I am correct in the view which I have just expressed, there was noroom for the application of section 151 (2) which deals with only a casewhere proceedings have been instituted under section 14S (1) (d). Therewas also no room for the application of section 151 (i), because it pro-vides for a case where the accused is not in custody. In the result theframing of a charge against the appellant upon the report being filedwas, in my opinion, perfectly proper.
Section 1S7 (1) speaks of an examination directed by section 151 (2).The latter provision is limited by its very terms to section 14S (1) (d)and cannot be extended to cover an institution of proceedings undersection 14S (1) (6). As section 151 (2) did not apply, it cannot be saidthat the charge framed against the appellant was in violation of section1S7 (1) or any other provision of the Code by reason only of the factthat the person who brought the appellant- before the court was notexamined on 22nd August.
In my opinion the appeal fails and should be dismissed.
Iv. D. de Silva, J.—
On August 20, 1955, a Police Sergeant submitted a report to the Magis-trate and at the same time produced the accused-ajipellant- in Court interms of section 126 A (1) of the Criminal Procedure Code (hereinafterreferred to as the Code). The Magistrate acting under section 126 A (2)remanded the accused to the custody of the Fiscal till August 22, 1955,-on which date the Police Sergeant instituted proceedings against himby filing a report in terms of section 14S (1) (b) of the Code. When thisreport was filed the accused was present on remand. The offences dis-closed in the report- were (1) putting one Abubucker in fear of injury inorder to commit extortion, (2) mischief, and (3) house trespass punish-able under sections 374, 410 and 434 of the Penal Code respectively.The Magistrate then framed a charge against the accused to which he
K. D. DE SI EVA, J.—Jfohidcen v. Inspector of Police, Peltah
223
pleaded “ not guilty On a subsequent day he was tried and eon-,victed and sentenced to 2 years’ rigorous imprisonment and 2 years’Police supervision. The appeal is from this conviction and sentence.
Thi3 matter originally came up for hearing before my brother (H. Vi. G.)Fernando, when tho Counsel for the appellant raised a point of law, relying on the decision of Soertsz J. in Vargheese v. Perera *. As my' brother Fernando doubted the correctness of that decision he reservedthis appeal to be heard by a fuller Bench to be appointed by My Lordthe Chief Justice. .'-••
The point of law which arises on this appeal is that tho Magistrateshould have recorded evidence on oath in terms of section 151 (2) before. he proceeded to frame a charge against the appellant. It is submittedthat the failure to do so’is not merely an irregularity but amounts toan illegality which vitiates the conviction. In support of that contentionthe Counsel for the appellant x’elied on the decision in Vargheese v. Persia1.In that case the prosecuting officer made a report to Court in termsof section 14S (1) (6) alleging that the accused had committed an offencein contravention cf tho Poisons, Opium and Dangerous Drugs Ordinanceand at the sarno time he produced the accused before the Court. TheMagistrate without examining the prosecuting officer or any other personon oath framed a charge against the accused who pleaded guilty. Whenthe case came up before this Court in appeal on a point of law Soertsz J.held that the Magistrate had disregarded an imperative requirementof section 151 (2). The learned Judge was of the view that this procedureamounted to an illegality which was fatal to the conviction. The .Attorney-General who appeared for the respondent in the instant casesubmitted that Vargheese v. Perera1 was wrongly decided. Ho soughtto support this conviction on the ground that the proceedings in this casewere instituted under section 14S (1)(6). His submission was that theexamination contemplated by section 151 (2) is restricted to proceedingsinstituted under section-14S (1) (d). He also argued that in any eventit was possible to regard these proceedings as coming under bothparagraphs (b) and (d) of section 14S (1) and that therefore thoMagistrate was entitled to act under either of those paragraphs andthat in the proceedings instituted under section 14S (1) (b) there is norequirement of law to record evidence on oath before framing the charge. 'The Attorney-General also submitted that even if the procedure followedby the Magistrate was wrong it amounted merely to an irregularityto which the provisions of section 425 apply..
Section 14S (1) of the Code makes provision for-the institution of . 'proceedings iri a Magistrate’s Court in six different M ays which are set •out in paragraphs (a), {b), (c), (d), (e) and (/) of that section.' -The para-graphs relevant to this appeal are (b) and (d). Paragraph'(6) reads —
. " “ on a written report to the like effect being made to a Magistrateof such court by an inquirer under Chapter XII or by a peace officer
or a public servant or a Municipal servant or a servant of .a District
Council or a servant of a Local Board ; V • ; :'
– 1 {1912) 43 N. L. R.- 564..
224 ' K. D. DE SILVA, J.—2Iohidccn v. Inspector oj Police, Pettah. ’ ;
.while paragraph (d) is in the following terms :—-' |
/‘•on any person’being brought before a Magistrate of such court-* in custody without process, accused of haring committed an offence
which such court has jurisdiction either to inquire into or try ; ”
.. Section 151-(1) deals with the'issue of process, after the institution. of the proceedings under paragraphs (o) or (6) or (c) of section 148 (1)
' against a person who is not in custody. Under this provision the Magis-
trate shall cither issue summons or warrant in conformity with theFirst Schedule of the Code. According to the proviso of section 151 (i)
The Magistrate may, if he thinks fit, issue summons insteadof a warrant.
In any case under paragraph (a) or paragraph (b) of section 14S (1)the Magistrate shall, before issuing a warrant and may beforeissuing a summons record evidence on oath and
(not material to this appeal.)
Section 151 (2) provides that when proceedings have been institutedunder paragraph (d) of section 148 (1) the Magistrate shall forthwithexamine on oath the person who has brought the accused before theCourt and any other person who .may be present in Court able to speakto the facts of the case.‘
My brother Fernando has taken the view that when the proceedingsare instituted under paragraph (b) of section 148 (1) the fact that the' accused is produced in custody does not alter the character of the ins-titution of the proceedings. That is to say, the proceedings institutedunder section 148 (1) (b) continue to be a proceeding instituted underthat section even though the accused is produced in custody.
That is why he considered that Vargheese v. Perera 1 was wronglydecided. His view is that no examination under section 151. (2) wasnecessary in that case although the accused was produced in Policecustody, because the proceedings were instituted under section 14S (1}(6).The facts in that case are substantially similar to those of the instantcase..
It is section 1S7 of the Code which deals with the framing of charges.The question whether or not evidence has to be recorded in any parti-cular case before the charge is framed against the accused has to bedecided in terms of the provisions of that section.- That section reads:—
“ Where the accused is brought up before the Court otherwise than-on a summons or warrant the Magistrate shall after the examinationdirected by section 151 (2) if he is of opinion that there is sufficientground for proceeding against the accused, frame a. charge against,the accused. ”.-"‘/r '-•
: It was contended by the Attorney-General—and that was the viewtaken-by my. brother Fernando too—that as these proceedings wereinstituted under section 148 (1) (6) there'was no obligation on the Magis-trate to hold the examination contemplated by section 151 (2). He
1 (1911) 43 24. L. R- 564.-
– IC. D. DE Sir-VA, JV—Jloht'deen v. Inspector of Police, Pettah '228
also submitted that the words “ if necessary ” should be interpolatedimmediately after the words “ directed by section 151 (2) ” in section187 (1). I do not think there is any justification for such an’inter-polation. Section 151 does not make provision for a situation whenthe accused is present in proceedings instituted under section. 148 (I) (b).Ip sets out the procedure to be followed only when the accused personis not present in Court. If section 151 is silent as to what procedureis to be followed when the accused is present at the time of the institutionof proceedings under section 14S (1) (6) there is no reason why the other• sections of the Code should not be examined to obtain the necessaryguidance. That guidance, in my opinion, is offered by section 187 (1).The opening words of paragraph (d) of section 148 (1) are “ On anyperson being brought before a Magistrate of such court in custody withoutprocess ” whereas, section 187 (1) refers to a case “ where the accusedis brought before the Court otherwise than on a summons or warrant. ”It is significant that the words " in custody ” appearing in section 148 (1)
are omitted in section 187 (1). Therefore the latter section is wider* in application than paragraph (d) of 148 (1) and it embraces all caseswhere the accused is present otherwise than on summons or warrant.This section 187 (1) includes not only a case where the accused is presentin custody, but also when he is present on remand on Police bail or onbeing warned by the Police to appear in Courtl In all those instancesit would appear, that it is incumbent on the Magistrate to hold the'examination contemplated by section 151 (2). I am unable to seewhat valid objection there can be to the utilisation, in section 187 (1),of a wholesome procedure devised earlier by section 151(2) for a .
different, though, an analogous purpose..'
‘ – ' – »*
I am unable to assent to the proposition that Va-gKeese v. Perera1came to be wrongly decided because Soertsz J. in construing section151 (2) ignored its opening words “ where proceedings have been ins-tituted under section 148 (1) (d) O' These opening words are not relevantin interpreting section 187 (I) because that section is not restricted■only to the proceedings instituted under 148 (1) (d) .•
. Ho case was cited to us where it has been held that it is proper to■frame a charge against an accused without holding the examinationoontemplated by section 151 (2) when he is produced in custody and^ the proceedings are instituted under section 148 (1) (6). In' Assen v.Maradana Police 2 the proceedings were instituted under section 148 (1) (6)and the accused was produced in custody while the charge was framed-without recording evidence on oath. Howard C.J. held that thisamounted to an irregularity but as no prejudice had been caused tothe accused he declined to interfere with the conviction and sentence.
The facts inThoynasv. Inspector of Police,-Kotlawa3, were exactly similar- to those of the instant case. There Wijeyewardene J. expressed the view ’that framing of the charge against the accused without recording evidence -'
was an irregularity but as no prejudice had been caused to the accused_he dismissed the appeal. The decisions in Odder v. JZarundratne*. and
’■1 (19-12) d3H. L. It. 564. ‘. " ; . 3 (1945) 47~N.
-3 (1944) 45 N. L. It; 263… .•* (1943) 45 N.I>.Ii.]23. ; V ’^
226 ' K. I). DE SILVA, J.^-AfoTiirfeen V. Inspector of Police', JPeUah.
Dias v'. Nadharaja1 are not in point because in neither of those cases■ was the accused produced in custody. ’,-:‘■
•• – In the instant case I am of opinion that when the charge' wasframed against the accused without holding the examination contemplatedby section 151 (2) there was a failure to comply with the provisionsof section 187- (1). – Does this non-compliance amount merely to an- irregularity or an illegality fatal to the conviction 1 In Ebert v. Per era 2which is a decision of a Bench of three Judges it was held that chargingan accused from a report filed under section 148 (1)(6) in respect of anoffence punishable with more than three months’ imprisonment amountedto an illegality which cannot be cured by section 425. That sectionreads•
“ Subject to the provisions hereinbefore – contained no judgmentpassed by a court of competent jurisdiction shall be reversed oraltered on appeal or revision on account— .
(«.) of any error, omission, of irregularity in the complaint, summons,warrant, charge, judgment, or other proceedings before orduring trial or in any inquiry or other proceedings under thisCode ; or‘ ■'
of the want of any sanction required by section 147 ; or(c-) of the omission to revise any list of assessors,
unless such error, omission, irregularity, or want has occasioned a. failure of justice! ”
It is important to observe that this section expressly states that itis to operate subject to the earlier provisions of the Code. One of thoseprovisions is section 187 relating to the framing of the charge. There-fore the non-compliance of hn imperative requirement of section 1S7cannot, in my view*, be cured by this section. In Vethanayagam' v.Inspector of Police, Kankesanturai 3 My Lord the Chief Justice whenhe was a Puisne Justice, held that failure to comply with section 190was not merely an irregularity but an illegality which cannot be curedby section 425 and stated as follows.;' r
•“ ZKTon-observance of a procedural statute is an illegality and not a
.merq irregularity as was laid down in the case of Smurthwaite v.Ilannay (1894, A.C. 494) ”_ -'
With respect, I agree with that observation.
If I may say so with respect, Vargheese v. Perera 4 was correctly decided.The point of law raised on this appeal is entitled to succeed. . The failure 'to comply with the provisions of section 187 (1)‘vitiates the conviction. 'I would therefore quash the proceedings and remit tho case for trialon a chargo that should be framed in conformity with the provisions -,of section 187 (1), that is to say, after holding tho examination directed’-by section 151 (2).- — '- _' . – s'. – :
•".'‘Appeal allowed. ~
* (1947) 48 X. D. R. 301.'. * (1922) 23 -2V. Ij. R. 3C2.
3 (1949) SO A’. X. R. jSS..
* (1942) 43 jST. L. Ii. SC4.