051-NLR-NLR-V-22-MUDIYANSE-v.-APPUHAMY-et-al.pdf
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Present: Schneider A.J.MUDIYANSE v. APPUHAMY et ah432—P. C. Kurunegala, 8,21L
Warran t against accused—Surrender of accused to Court—Charge explained
from warrant—Criminal Procedure Code, s. 187.
Where an accused person against whom a warrant was issuedsurrendered to Court, the Magistrate explained the charge fromthe warrant.
Held, that it was a sufficient compliance with the requirementas to framing a charge.
“The warrant is in writing, and contained all the particularswhich a formal charge should contain under the provisions of.chapter XVII. of the Procedure Code. It is in every senseidentical with a formal charge.”
Where two accused were charged in the same plaint, one accusedsurrendered to Court after the other was convicted, and the new,6*
1920.
( no )1980.
Mudiyansev. Appuhamy
Magistrate recalled the witnesses and read over to the accusedthe evidence already recorded, and put further questions to thewitnesses and submitted them for cross-examination—
Held, that the procedure followed was sanctioned by section 297of the Criminal Procedure Code, and that it was not necessary tohold an entirely independent trial.
Groos-Dabrera, for second accused, appellant.—There has beenno charge framed. The Police Magistrate has read the charge fromthe warrant. It has been consistently held that where an accusedsurrenders it is not sufficient to read the charge from the warrant.The omission to frame a charge is a fatal irregularity, and theconviction is therefore bad. Mendis v. Fernando,l Gunewardenev. Lebbe,1 2 * 4 * Dunuwila v. Singho,8 Inspector of Police v. Maris,* JamesAppu v. Egonis Appu,6 Sanders v. Vally Thampan* Silva v. Peiris?A contrary decision was arrived at in Hendrick v. Palis Appu8 andSingho v. Per era 8 but it is submitted that the true construction ofsection 187 of the Criminal Procedure Code, regarding the framingof charges, is contained in the earlier decisions. Section 187 (1)distinctly says that when an accused is brought up otherwise thanon a summons or warrant the Magistrate shall frame a charge.When an accused surrenders it cannot be said that he was broughtup. Nor can it be said under section 187 (2) that he appears on awarrant.
The procedure adopted by the Magistrate at the trial is irregular.The two accused were tried on different occasions. When thesecond accused was tried the witnesses should have been examinedafresh. Instead of doing this, the Magistrate has simply read overthe evidence led at the trial of the first accused. – This is obnoxiousto the provisions of sections 156 (1), 297, and 298 of the CriminalProcedure Code. The Magistrate had no opportunity of observingthe demeanour of the witnesses. He has been influenced by theevidence given at trial of first accused. These irregularities havecaused grave prejudice to the second accused.
Cur. adv. vult.
July 8,1920. Schneider A.J.—
The proceedings in the trial of this case were initiated by a reportunder the provisions of section 148 (6) of the Criminal ProcedureCode, 1898, .made by a Police Inspector charging one Appuhamy asthe first accused and this accused, the appellant, as second accused,with theft of a buffalo. According to the evidence the first accusedwas seized as he and this accused were removing the animal, but
1(1900) 4 N. L. R. 104.
* (1911) IS N. L. R. 183.
8 (1916) 3 B, N. O. 60.
4(1916) 6 B. N. C. 27.
9 (1919) 6 G.
(1916) 3 C. W. R. 363.
(1914) 1 C. A. R. 66.
(1919) 6 C. W. R. 279.
(1915) it7. W. R. 194.. R. 278.
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this accused, who was seen and identified by some of the witnesses,managed to escape by running away. The Magistrate recorded, inthe presence of the first accused, the evidence of the complainant on
April 7, L920, the day on which the first accused was brought toCourt, and directed a warrant to be issued against this accused.He postponed the trial for April 10. On that date it was reportedthat this accused was not to be found. He directed the warrantto be re-issued for April 27, and then for May 6. On that day hetried the first accused in the absence of this accused and convictedhim of the offence, and ordered a proclamation to issue for theattendance of this accused. On May 10 this accused surrenderedto the Court. The charge was explained to him from the warrant.He pleaded “ not guilty,” and the trial was fixed for May 20. Bythat date the Magistrate who had dealt with the case up to thatpoint had been transferred, and his successor proceeded with thetrial of this accused. He re-oalled the witnesses who had givenevidence previously, read to them their previous evidence, putfurther questions to them again in examination-in-chief, andsubmitted them for cross-examination. These witnesses were allcross-examined by this accused. Upon the evidence so recordedhe convicted this accused. The findings of fact by the Magistratewere not questioned, except, incidentally, as connected with theobjections which I am now proceeding to consider. Two objectionswere urged. One was that no charge had been framed, and that theexplaining of the charge from the warrant is not a sufficient com-pliance with the requirement to frame a charge. In support of thiscontention counsel for the accused referred me to a number of cases.It seems to me that I need refer to two of them only, as they aloneappear to be in point. They are the cases of James Appu v. EgonisAppuJ and Silva v. Peiris,a These cases do clearly support thecontention; but in spite of my great regard for the opinion of mybrother De Sampayo upon any point of law, I do not feel disposedto follow his ruling in those cases in deciding the present. I wouldrather adopt the ruling in Hendrick v. Palis Appu* which wasfollowed by me m Assan Singho v. Perera* The facts of this casemay be regarded as bringing it within the provisions of section 187
and (3) of the Criminal Procedure Code. The warrant, in thisinstance, is in writing, and contained all the particulars which aformal charge should contain under the provisions of chapter XVII.of the Procedure Code. It is in every sense identical with a formalcharge. I would, therefore, hold against this objection.
A second objection was as to the manner in which the evidencewas recorded. It was contended that the witnesses should havebeen examined de novot and that the trial of this accused shouldhave been regarded as a proceeding entirely independent of the trial
1920,
Schneider
A.J.
MudiyanseV. Ajypuhamy
1(1916) 3 C.*W. B. 363.
2(1919) 6 C. W. B. 279.
(1915) 1 G. W. B. 194.1 (1919) 6 C. W. B. 278.
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1920.
Schneider
A.J.
Mudiyansev, Appuhamy
of the other accused. This objection, it seems to me, is not sound.The trial of this accused is part and parcel of the trial of the otheraooused. They were charged in the same plaint with havingcommitted the same offence jointly. It is only the absence of thisaccused which prevented his trial taking place at the same time asthe trial of the other aocused. Therefore, it appears to me thatsoction 297 sanctions the procedure which the Magistrate followed.The fact that the one Magistrate tried the first accused while theother tried this accused does not vitiate the-proceedings either, inview of the provisions of section 89 of the Courts Ordinance, 1889.
I therefore dismiss the appeal.
Appeal dismissed.