079-NLR-NLR-V-41-MEERA-NATCHIYA-v.-MARIKAR.pdf
HOWARD C.J.—Meera Natchiya v. Marikar314
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1940Present: Howard C.J.’•
MEERA NATCHIYA v. MARIKAR.
638—M. C. Puttalam, 26,736.
Charge—Omission to state particulars—Power of Cour.t to amend—Reference incharge to offence—Sufficient notice—Powers of Supreme Court inappeal—Criminal Procedure Code, ss. 167 ( 2), 172, 347 (Cap. 16).Where a charge does not contain proper particulars a Magistrate hasthe Jower under section 172 of the Criminal Procedure Code to amendthe charge so as to make it conform to the evidence led in the case.
In view of the provisions of section 167 (2) of the Criminal ProcedureCode a reference in the charge to the name of the offence as specifiedin the Penal Code is sufficient to give an accused notice of the matterwith which he is charged.
Where a Magistrate has convicted an accused person under a wrongsection, the Supreme Court in appeal has power under section 347 ofthe Criminal Procedure Code to convict him of the right offence.
^^PPEAL from a conviction by the Magistrate of Puttalam.
H. V. Perera, K.C. (with him C. X. Martyn), for the accused, appellant
L. A. Rajapakse, for the complainant, respondent.
Cur. adv. vuir.
February 13, 1940. Howard C.J.—’ ,
This is an appeal by the accused from his conviction and sentence ofsix weeks’ rigorous imprisonment by the Magistrate of Puttalam onSeptember 6, 1939, on a charge of using criminal force otherwise than ongrave and sudden provocation under section 343 of the Penal Code.The appellant was originally charged with (1) criminal trespass, (2),voluntarily causing hurt under section 314 of the Penal Code, (3) insultingthe complainant. The learned Magistrate after reviewing the evidenceacquitted the appellant of the first and third charges. The secondcharge was framed as follows : —
“At the same time and place aforesaid did voluntarily cause hurtto the complainant Sego Meera Natchiya by striking her with awooden sandal ”.
The Magistrate has found that the act of striking the complainant with, awooden sandal has not been established but on the other hand there isadequate evidence to prove that the appellant assaulted the complainantby kicking and with hands and a stick. The Magistrate holds that,owing to the omission to mention explicitly in the summons the assaultby kicking and with hands and a stick, he is unable to convict theappellant on the charge under section 314. He considers, however, thatthere is sufficient evidence to maintain a charge of using criminal forceotherwise than on grave and sudden provocation and in thesecircumstances convicts the appellant under section 343.
The judgment of the learned Magistrate who is a civil servant and nota professional lawyer reveals great confusion of thought. If the evidencewith regard to the kicking and assault by hands.and a stick was to beaccepted, an offence under section 314 had been committed. If theMagistrate considered that a conviction under section 314 was not
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Di<& r. Silva.
possible by reason of the failure to give the proper particulars in thecharge, the same objection could be taken to a conviction under section343. The particulars in the charge could have been made to fit in intothe evidence, if the Magistrate had amended the charge under thepowers vested in him by section 172 of the Criminal Procedure Code.In view, however, of the provisions of .section 167 (2) of the CriminalProcedure Code, I think a reference in the charge to the name of theoffence as specified in the Code was sufficient to give the appellant noticeof the matter with which he was charged. In the circumstances of thiscase, moreover, the omission to state the proper particulars was not'material inasmuch as the accused could not be said to have been misledby such omission. In these circumstances the Magistrate should haveconvicted the appellant under section 314 and I, therefore, propose toemploy the powers vested in the Supreme Court under section 347 of theCriminal Procedure Code so as to convict the accused of the right offence.It is clear from the commentary on the corresponding section of theIndian Criminal Procedure Code at pp. 471-472 of Woodroffe’s CriminalProcedure in British India that the facts of this case warrant the employ-ment of such powers. In view of this decision it becomes unnecessaryfor me to consider whether the Magistrate had under the CriminalProcedure Code feny power to convict the appellant of ai¥ offence undersection 343 of the Penal Code.
Counsel for the appellant has in addition to various submissions withregard to the finding contended that in the circumstances of this casewhich was in the nature of a family quarrel a sentence of six weeks’rigorous imprisonment was too severe a penalty. Counsel for thecomplainant has not maintained that this assault merited a term ofimprisonment. I am of opinion that justice can be met without sendingthe appellant to prison.
The conviction of the appellant under section 343 of the Penal Codeand the sentence of six weeks’ rigorous imprisonment are set aside and Iconvict him under section 314 and sentence him to a fine of Rs. 50 or onemonth’s rigorous imprisonment in default.
Conviction varied.