W. D. BEDE, Appellant, and I.P. BOTEJU (S. I. Police), Respondent

020-NLR-NLR-V-66-W.-D.-BEDE-Appellant-and-I.P.-BOTEJU-S.-I.-Police-Respondent.pdf


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TAMBIAH, J.—Bede v. Boteju
1964Present : Tambiah, J.W. D. BEDE, Appellant, and I. P. BOTEJU (S. I. Police),
Respondent
S. C. 844/1963—M. C. Kanuwana, 5751
Criminal procedure—Accused person brought before Magistrate without process—Failure of Court to examine person who brought the accused—Effect—CriminalProcedure Code, ss. 148 (1) (d), 151 (2), 425.
Where a person is brought before a Magistrate in custody without processaccused of having committed an offence, the failure to examine, in terms ofsection 151 (2) of the Criminal Procedure Code, a person who produces theaccused is not a fatal irregularity if his evidence is of no value in finding outwhether there is a prima facie case against the accused.
Appeal from a judgment of the Magistrate’s Court, Kanuwana.
N.E. Weerasooria (Jnr.), for the Accused-Appellant.
D. S. Wijesinghe, Crown Counsel, for the Attorney-General.
February 14, 1964. Tambiah, J—
There is no reason for me to interfere with the finding on the facts inthis case. Mr. Weerasooria has urged that the proceedings are null andvoid because the police officer who produced the accused in court had not
TAMBIAH, J.—Bede v. Boteju
66
given evidence before the learned Magistrate before the proceedings inthe case started. The accused was brought to court otherwise than onsummons or on warrant. In view of the ruling of the Divisional Benchevidence has to be recorded before a Magistrate starts proceedingsin a case.
The nature of the evidence that would have had to be led is laid downin a number of cases and that evidence should not be hearsay. In theinstant case the person who received the stab injury was called and hetestified before court that the accused stabbed him. The police constablewho produced the accused was not called to give evidence before thecommencement of the proceedings to convict the accused.
Section 151 (2) of the Criminal Procedure Code enacts as follows :“ Where proceedings have been instituted under paragraph (d) of Section148 (1) the magistrate shall forthwith examine on oath the person who hasbrought the accused before the court and any other person who may bepresent in court able to speak to the facts of the case
Mr. Weerasooria contended that in view of the word ‘ shall ’ in Section151 (2) of the Criminal Procedure Code it is imperative on the part of theMagistrate to call the person who brought the accused before his court.This word has been construed in a number of cases. The view thathas been taken is that failure to call a person before the Magistrate is not afatal irregularity but is one curable under Section 425 of the CriminalProcedure Code. Vide :65 C. L. W. 29 Aseervatkan v. Kanthidh;
S. C. 5411963 of 9th May, 1963 ; 65 N. L. R. 210, Caldera v. Wijewardena.
Mr. Weerasooria referred me to case No. S. C. 749/1963—M. C.Balapitiya No 25722, where Herat, J., took the view that it is imperativethat the person who brought the accused before the court should be calledin a case where that person had been brought to court otherwise than onsummons or on warrant and if this is not adopted ths whole proceeding is anullity. I am afraid, I prefer the view that it is only a curable irregularity.The exact line of demarcation between irregularity and illegality hasnever been satisfactorily explained in any of the decisions of our courtsor the Privy Council. The exact distinction between irregularity andillegality is difficult to define. But in the instant case the evidence ofthe police officer who brought the accused before the Magistrate willbe of no value to the Magistrate in finding out whether a prima faciecase is made out against the accused.
Section 151 (2) of the Criminal Procedure Code had been specificallyenacted by the Legislature in order to ensure that when a person is broughtto court otherwise than on summons or on warrant, a prima facie caseshould be made out against the accused person. This requirement issatisfied if the person who received the stab injury testified that theaccused stabbed him. The mere use of the word * shall5 in Section 151 (2)does not mean that a failure to call the person who had produced theaccused is such a fatal irregularity that it is not curable under
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HERAT J.—Krishnan v. Vairy
Section 425 of the Criminal Procedure Code. For these reasons I holdthat the trial is not vitiated.
Mr. Weerasooria asks for the reduction of the sentence of six monthsrigorous imprisonment imposed on the accused-appellant by the Magis-trate. In this case a public officer who was performing his duties wasstabbed. This court should give protection to public officers. Therefore,I do not propose to interfere with the sentence of the case. For thesereasons the appeal is dismissed.
Appeal dismissed.