1920. Present: Bertram C.J.

COORE v. JAMES APPU.

581-M. C. Colombo, 3,151.

Criminal Procedure Code, ss. 187 and 425-Failure to frame a charge-Charge in warrant or report-Irregularity-Failure of justice- Keeping a brothel-Living on the earnings of prostitution-Systematically procuring persona for the purpose of illicit intercourse-Ordinance No. 21 of 1919-Ordinance No. 5 of 1889.

The total absence of a written charge ought not to be treated as a mere irregularity.

But where there is a charge contained in a warrant or in a report, even if in the one case the accused appears before the warrant is executed, and in the other the offence is one punishable with imprisonment for more than three months or fine over Rs. 50, the. failure to frame a separate written charge may amount to nothing more than a mere irregularity, and it is the duty of the Appeal Court, under section 425 of the Criminal Procedure Code, to inquire whether in the particular case under consideration the irregularity led to a " failure of justice." Anything which has proved prejudicial to the interests of the accused In the trial should be considered to have led to a failure of justice.

Where the facts disclosed the offence of keeping a brothel under section 1 of Ordinance No. 5 of 1889, the charge in the report read to the accused was laid under section 9 of the Criminal Law Amendment Ordinance, No. 21 of 1919.

Held, in the circumstances of this case the failure to frame a written charge by the Magistrate was a fatal irregularity.

The provisions of Ordinance No. 21 of 1919 explained.

" If a person is charged with living on the earnings of prostitution, it is not right to give general evidence that he does this ; the name of the alleged person on whose earnings he is said to live must be specified.

THE facts appear from the judgment.

J. S. Jayawardene, for appellant.

Cur. adv. vult.

October 13, 1920. BERTRAM C.J.-

This case raises the question on which there have been conflicting decisions as to whether, when an accused person is brought before a Police Court, neither on a summons nor a warrant, but on a report under sub-section (b) of section 148 of the Criminal Procedure Code, for an offence punishable with more than three months' imprisonment or a fine of Rs. 50 (see section 187 (3)), the fact that the

Magistrate does not frame a charge as required by section 187 (1), but reads the charge from the report, is necessarily a fatal defect not curable by section 425.

This question is part of a wider question-the effect of failure to comply with the requirements of section 187 relative to the framing of charges. There are numerous decisions of this Court on the subject. They are not entirely uniform; but the general effect is to suggest that it is now settled law that any failure to comply with these requirements is a necessarily fatal defect. All of these decisions are decisions of Judges sitting singly. Some day it will no doubt be necessary that the authority of these decisions should be considered by the Full Court. As a matter of fact, in the present case I have come to the conclusion that the erroneous procedure did, in fact, prejudice the accused. The present case, therefore, is not appropriate for a reference to the Full Court. As, however, I have investigated the history of the subject, and have collected all the authorities I have been able to discover dealing with the point, it would be convenient that I should review the whole question. This review, and any conclusion I may provisionally express, must be regarded as subject to fuller consideration when the matter is finally discussed.

The history of the subject is as follows. Our present Code replaces the Code of 1883 ; that Code, like the present one, was modelled upon the Code at the time in force in India. As the present Indian Code on the subject we have to consider does not materially depart from its predecessor, it