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ARNIS v. CHARLES et al.
NLR18V287
Present :
De Sampayo A.J. 1914.
ARNIS v. CHARLES et al.
710-P.C. Negombo, 21,653.
Non-summary proceedings-Magistrate must give the accused notice of his intention
to try them summarily.
Proceedings in this case commenced by the Magistrate taking non-summary
proceedings, but after the medical officer deposed to the injuries being
non-grievous, the Magistrate framed charges against the accused under sections
314 and 315 of the Penal Code, and took their pleas. The witnesses previously
called were then cross-examined, and evidence for the defence was also heard,
and the accused were convicted.
Held, that the proceedings were irregular. Daniel v. Romanis1[4 S. C. D. 61.] commented upon.
THE
facts appear from the judgment.
Elliott, for first accused, appellant.
A. L. R. Aserappa, for complainant, respondent.
Cur. adv. vult.
August 25, 1914. DE SAMPAYO A.J.-
The proceedings in this case are embarrassing, if not wholly irregular. Three
persons were charged under sections 314. and '515 of the Penal Code with causing
hurt to the complainant, and after the examination of a police constable the
Magistrate recorded his intention to take non-summary proceedings, which were
taken accordingly. A certain number of witnesses were examined for the
prosecution, their cross-examination being for some reason or other
deferred. But after the medical officer had been examined and had deposed to the
injuries on the complainant being non-grievous, the Magistrate framed charges
against the accused under sections 314 and 315 of the Penal Code, and their
pleas were taken. The witnesses previously called were then cross-examined,
evidence for the defence was also heard, and in the result the accused were
convicted. The Magistrate made no record that he was converting the non-summary
proceedings into a summary trial, nor were the accused at any time informed of
such an intention. In Saram v. Meera1[1 N. L. R. 95.] and Charles v. Charles2[2 N. L. R. 187.] it was decided
that where in the course of non-summary proceedings the Magistrate should find
that facts proved amounted to an offence triable by him summarily, the proper
course was to stay proceedings as a non-summary inquiry, frame a fresh charge,
and give notice to the accused that he was now on his trial. In Charles v.
Charles2[2 N. L. R. 187.] it was even held that the accused should be formally discharged before
the summary proceedings commence. Referring to these decisions, Wood Renton J.,
in Daniel v. Romania3[4 S. C. D. 61.], observed that they were given prior to the Criminal
Procedure Code of 1898. and considered that in view of section 172 of that Code
they were no longer applicable. With deference I am unable to take the same
view. Section 172 in question merely authorizes a Court to alter any charge at
any tame before judgment is pronounced, but requires such alteration to be read
and explained to the accused; and exactly similar provisions were contained in
section 201 of the old Criminal Procedure Code of 1883, so that the authority of
the above decisions is not affected by the enactment of the new Criminal
Procedure Code. Moreover, the present is not a case of alteration of charges, as
was the case in Daniel v. Romanis3[4 S. C. D. 61.]; the charges remain identically the same,
but the nature of the proceedings is wholly altered, and of this, I think the
accused were entitled, ex debito justitiae, to have distinct notice. I think the
proceedings in this case materially prejudiced the accused, and the conviction
of the first accused-appellant ought not on that ground to be sustained.
I think also the first accused-appellant is entitled to succeed on the merits . .
.
Acquitted.
