1914 Present: Pereira J.

PERIS v. GUNASEKERA.

672-P. C. Colombo, 47,815.

Charge-Omission in charge-Curable irregularity-Evidence that a person " publishes " a newspaper-Evidence that he " distributes '' a newspaper.

The total absence of a charge or its equivalent in a summary trial in the Police Court is a fatal illegality, but a mere omission in it is a curable irregularity, unless it has occasioned a failure of justice. And so, when in a prosecution against a person for printing for sale and distributing an obscene paper, the obscene matter relied on was not, as it should have been, set forth in the charge, and it appeared that the accused bad taken no objection on that score in the Court below, the Supreme Court refused to interfere with the conviction.

The evidence that an accused party " publishes " a newspaper is sufficient evidence that he " distributes " it.

THE facts are set out in the judgment.

Bawa, K.C., and R. L. Pereira, for accused, appellant.

Bertram, K.C., A.-G., van Langenberg, K.C., S.-G., and V. M. Fernando; C.C., for respondent.

August 24, 1914. Pereira J.-

Before arguing this case on the evidence, the counsel for the appellant took exception to the conviction on the ground that no charge had been framed against the accused. This is a case in which the accused appeared on a summons, and the Magistrate appears to have acted under sub-section (2) of section 187 of the Criminal Procedure Code, and to have explained to the accused the particulars of the offence contained in the summons. On this being pointed out to the learned counsel, he took the objection that the obscene words taken exception to by the prosecution were not specifically set forth in the summons, and he cited divers judgments of the English and the Indian Courts to the effect that in a prosecution like this it is essential that the actual words taken exception to as obscene should be made a part of the charge. There is little doubt that the charge as set forth in the summons is defective owing to the omission pointed out by the learned counsel, but, then, the question is whether the case is not covered by the provision of

section 425 of the Criminal Procedure Code. It has been held by this Court that the total absence of a charge is not a mere irregularity to which the provision of section 425 would apply, but a fatal illegality (Gunewardene v. Pakeer Lebbe1); but the same cannot be said of a mere omission in a charge. That may clearly be regarded as an irregularity curable by section 425, because that section expressly enacts that no judgment shall be reversed or altered, on account of any omission in the charge, unless such -omission has occasioned a failure of justice. The question thus resolves itself into this. Has the omission mentioned above in the charge set forth" in the. summons in. the present case occasioned a failure of justice? I find" no difficulty in answering this question. The accused was charged with having printed for sale and distributed an obscene paper. The obscene matter was referred to as the article in the issue of the Sinhalese newspaper known as the '' Sinhala Baudhaya '.' of the 3rd May last beaded " Denagathyuttu Karuna. " That certainly was too general a description of the alleged obscene matter; but the accused, who was represented by counsel, took no objection to the charge. The presumption is that he knew well what the obscene matter referred to was. The fact that the accused took no objection to the charge in the court below has a bearing on. the question as to whether he was prejudiced by the omission to set forth in the charge the obscene matter complained of. In the case of The Queen v. Appuwa,2 cited for some inexplicable reason by the appellant's counsel, this Court held in effect that the absence of objection by the accused to the indictment or charge was: an indication that the accused was not prejudiced by any. omission. in it