007-NLR-NLR-V-45-CADER-Appellant-and-KARUNARATNE-Respondent.pdf
DE KRETSER J.—Coder and Karunaratne.
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1943Present: de Kretser J.
CADER, Appellant, and KARUNARATNE, Respondent.
331—M. C. Colombo, 9,415.
CriminalProcedure—Proceedingsagainst accused on Policereport—Accused
appears in Court—Magistrate not bound to examine complainant beforeframing charge—Criminal Procedure Code, s. 151 (3).
Where proceedings are initiated against an accused person undersection 148 (1) (b) of the Criminal Procedure Code on a report by thePolice and the accused appears in Court without a warramt or summonsthe Magistrate is not bound to examine the complainant before framinga charge.
Varghese v. Perera {43 N. L. R. 564) distinguished.
^^PPEAL from a conviction by the Magistrate of Colombo.
W. Jayewardene (with him S. Ahmed), for appellant.
A. Wijemanne, C.C., for complainant, respondent.
June 21, 1943. de Kretser J.—
The accused was charged on a report made by the Police under section148 (1) (h) of the Criminal Procedure Code. He had been arrested theprevious night and then he had given bail to appear in Court-. At thetime the report was received by the Court, the accused appeared beforeCourt. The Magistrate thereupon framed a charge to which the accusedpleaded not guilty and in due course the accused was tried and convictedon evidence which the Magistrate characterised as clear evidence. Thereis no reason to interfere with the conviction on, the facts. For theaccused it is urged that the accused had not been properly charged interms of section 187 (1) of the Criminal Procedure Code and consequentlythere was no charge whatever and therefore the whole trial was bad.I was referred to a decision of Soertsz J. in Varghese v. Perera1. Inthat case, however,accused was produced in custody by the
1 43 N. L. R. 564.
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DE KHETSEB. J.—Cadet and Karunaratne.
prosecuting officer. The result was that under section 151 (2) it wasobligatory on the Magistrate to forthwith examine on oath the personwho brought the accused before the Court and it was only after suchexamination that the charge could be framed in terms of section 187 (1) ofthe Criminal Procedure Code. In the present case accused was not before the•Court in the manner contemplated under section 148 (1) (d) to which alonethe provisions of section 151 (2) applies. This is a case governed by section148 (1) (6) and section 151 (3) which applies to such a case states that theMagistrate shall issue a summons or warrant as the case may be. Thisproviso states that before issuing a warrant the Magistrate shall examinethe complainant on oath or some material witness and may do so beforeissuing a summons. So that in a case where summons should issue it isnot obligatory on the Magistrate to examine on oath the complainant.In the present ease the accused appeared without warrant or summons.It was a preliminary to the issue of either of these that any examinationwould take place, but when it was unnecessary to issue a summons orwarrant because of the appearance of the accused then the resultingposition was that the Magistrate had before him a report by the Policeon which some action had to be taken. If it had been a type of caseprovided for in the proviso 187 (1) then the Magistrate without framinga, charge might have read that report but, since the proviso did not applyto this case, it seems to me that the obvious course for the Magistrate topursue was to frame a charge unless for some reason he desired to have■evidence before framing the charge. That is exactly what the Magistrate-did in this case. It is said that he merely transcribed the report. I donot see any objection to a report being transcribed if it states the chargein perfect terms. It would be rather absurd if the report is excellentlyworded for the Magistrate to have to mutilate the charge in some way inorder to produce a difference in wording. The charge as framed is quiteclear and good. The accused and his legal advisers quite understoodit and they were given ample opportunity not only to take objection toit at once but to do it after careful perusal. I cannot therefore see any•substance in the objection. The legal objection fails. The appeal isdismissed.
Affirmed.