[FULL BENCH]

Present : Ennis, De Sampayo, and Schneider JJ.

EBERT v. PERERA.

166-P. C. Colombo, 40,782.

Criminal Procedure Code, ss. 187 and 425-Charge read from report-Is irregularity fatal ?-Appearance by accused after summons or warrant was issued, but before service-Charge read from summons.

Where proceedings were instituted under section 148 (b) of the Criminal Procedure Code, 1898, on a written report to the Magistrate that the accused had committed an offence punishable with more than three months' imprisonment, and the accused appeared without a summons or warrant being issued, and the Magistrate endorsed on the report " charge read from the report."

Held, that there was an omission to frame a charge, and that the irregularity was not covered by section 425.

DE SAMPAYO J.-An omission in the charge-an omission, for instance, of the necessary particulars in the charge-may be regarded as an irregularity which may be cured by section 425 if no prejudice has been thereby occasioned to the accused. But the entire absence of a charge, when a Magistrate ought to have framed one, is not a mere irregularity which may be overlooked under section 425, but is a violation of the essential principle governing criminal procedure and vitiates a conviction.

ENNIS J.-An appearance in Court by an accused person to show cause against a complaint when a summons or warrant has been issued is an appearance on a summons or warrant, even although the summons has not been served or the warrant executed; and the statement in the summons or warrant could, in such a case, be deemed to be the charge.

THIS case reserved for the consideration of three Judges by Schneider J. by the following order:-

In this case the proceedings in the Police Court were instituted by a printed report made by an Inspector of Excise charging the accused Appu with having sold an excisable article without a license in breach of section 17 of the Excise Ordinance, No. 8 of 1912, an

offence punishable under section 43 (b) of that Ordinance. On  this report the Magistrate had endorsed:" Charge read from report.  He states he is not guilty."

It was stated, and the statement is borne out by the record, that the accused was not brought before the Court on a summons or warrant. Mr. J. S. Jayawardene argued on appeal on behalf of the accused that the omission to frame a charge as required by the provisions of section 187 of the Criminal Procedure Code was an irregularity fatal to the conviction, apart from any question of prejudice to the' accused, as the offence disclosed was punishable with more than three months' imprisonment.

As a conflict of decisions has arisen in consequence of the judgment in the case of Coore v. James Appu,[1] and as the point raised is of material practicable importance, let this case be submitted to the Honourable the Chief Justice for his order.[2]

Soertsz (with him J. S. Jayawardene), for appellant.-Omission to frame the charge is fatal to the conviction. Explaining the charge from the report is not sufficient compliance with section 187 of the Criminal Procedure Code, when the offence is punishable with more than three months or Rs. 60. All the authorities are collected and examined by the Chief Justice in Coore v. James Appu (supra).

Section 535 of the Indian Criminal Procedure Code provides that a conviction is not to be deemed invalid on the ground that no charge was framed, and section 537 cures irregularities in the charge itself. In the old Ceylon Criminal Procedure Code, No. 3 of 1883, sections 493 and 494, respectively, provided for these irregularities. But in the Criminal Procedure Code, No. 15 of 1898, the old section 493 was left out, and section 494 is retained without any alteration as section 425. By omitting section 493 the Legislature intended to enact that failure to frame a charge was fatal to the conviction.

[DE SAMPAYO J.-Is not section 425 suf