059-NLR-NLR-V-65-M.-A.-M.-RISHAD-Petitioner-and-S.-MASHOOR-MOULANA-and-4-others-Respondents.pdf
H. N. G. FERNAJMDO, J.—Rishard v. Masha or Moulana
287
1963Present: H. EL G. Fernando, 3.
M. A. M. RISHARD, Petitioner, and S. MASHOOR MOULANA and
4 others, Respondents
S. C. 356/62—Application in Revision in M. C. Oalle, 23114
Issue of summons against an accused person—Power of Court to recall the summonsbefore it is served—Criminal Procedure Code, as. 148 (J) (o), 151 (1) proviso 2.
The issue of summons against an accused person is an ex parte act, and theMagistrate is entitled to recall the summons so long as it has not been, served.
Accordingly, where, in a prosecution by private parties, the Magistrate hasfailed per incuriam to take note of proviso 2 of section 151 (1) of the CriminalProcedure Code when issuing summons against the accused, he may recall thesummons, before it is served, and notice the complainant to lead evidence beforethe issue of process.
/APPLICATION to revise on order of the Magistrate’s Court, Galle.
Colvin R. de Silva, with Issadeen Mohamed and A. R. Manaoor, forComplainant-Petitioner.
A. H. C. de Silva, Q.C., with A. H. Mohideen, for Accused-Respondents.
V. S. A. PuUenayegum, Crown Counsel, for the Attorney-General, onnotice.
April 5, 1963. H. N. G. Pebnajtdo, J.—
This was a plaint filed under Section 148 (1) (a) of the CriminalProcedure Code by private parties. It was filed on 30th July, 1962 onwhich date the learned Magistrate ordered summons to issue for 8thSeptember 1962. There is a further journal entry dated 31st July, 1962,“ Issue summons The absence of a further entry as to the summonsin the journal indicates that the summons has not in fact been served.
On 2nd August, 1962 there is a journal entry to the effect that Counselappeared in Chambers on behalf of the suspects and drew the attentionof the Magistrate to section 151 (1) proviso 2 which empowers a courtto call any evidence before the issue of process. This minute of theMagistrate satisfies me that on 30th July, 1962 the Magistrate has omit-ted to direct his mind to the question whether he should record evidenceor not before he issued summons. When the provision of law was broughtto his notice he decided that he should record some preliminary evidenceand he, therefore, recalled the summons and noticed the complainant tolead evidence in terms of section 151 on 16th August, 1962.
288
H. N. G. FERNANDO, J.—Sishard v. MmKoor Mcviana
The complainant has not bean aide to make out any reason w,hj he wasunable to comply •with this notice or to point to any prejudice arising byreason of the Magistrate’s decision.
But Counsel for the complainant now argues that the Magistrate hadno power to recall the summon^ I do not agree. The issue of summonsagainst the accusedperson is an ex parte act and so long as summons has notbeen actually served, it is, so to speak, a document still within the controland custody of the Court. The order of recall is, therefore, merely adirection to the Fiscal not to carry out the Court’s earlier order. Itwould appear that per incuriam the Magistrate failed to take note ofsection 151 on the first occasion and he has subsequently merely decidedto correct his own error. The application to set aside the order of 2ndAugust, 1962 is refused; but in the circumstances, the Magistrate willhave to fix a fresh date for the complainant to lead evidence. He will,thereafter, decide whether or not to issue summons.
Application refused.