Back
AMERETUNGE v. PERERA et al.
NLR32V310
1930
Present: Lyall Grant J.
AMERETUNGE v. PERERA et al.
457-463-P. C. Gampaha, 12,539.
Criminal charge-Death of complainant-Do proceedings abate ?
Criminal proceedings which are conducted by the Police do not abate on the death
of a complainant.
APPLICATION
for revision of a A conviction by the Police Magistrate of Gampaha.
de Zoysa, K.C. (with him Jayasuriya), for first appellant.
Jayasuriya, for second to eighth appellants.
September 8, 1930. LYALL GRANT J.-
I am asked to deal in revision with the convictions of two persons. Both accused
were convicted of having voluntarily caused hurt to one J. P. Ameretunge, and
the first accused having in addition committed mischief.
One ground upon which I am asked to interfere has reference to the procedure
adopted. The accused was charged in the original complaint, together with
others, of assault, punishable under section 346 ; of theft of a starting handle
and of cash, and of mischief by tearing and damaging the hood of a car. That
complaint was laid upon February 15 this year when the deposition of the
complainant was taken at length, and on February 17 the Police reported to the
Court that the same accused caused hurt to Mr. Ameretunge, the first
complainant, an offence punishable under section 314, and that they committed
mischief by causing damage to the car.
The Police information related to the same transaction as the original
complaint.
The journal entry of that date states :- " All accused present, except the 8th
accused. Private plaint has already been filed in this connection and summons
have already been issued for February 21. File this plaint with the private
plaint filed. Accused present, warned to attend on February 21."
On February 21 the first seven accused were present and a charge was framed and
explained to them. The charge framed was that the accused assaulted and used
criminal force to the complainant J. P. Ameretunge, with intent to dishonour
him, an offence punishable under section 346 ; that at the same time and place
they committed theft of a starting handle of a motor car valued at Rs. 25 and
Rs. 3 in cash, an offence punishable under section 367 of the Penal Code, and at
the same time and place they committed mischief by tearing and damaging the hood
of the complainant's car and by breaking the door, an offence punishable under
section 409 of the Penal Code. The charge, in short, followed the terms of the
original complaint.
The accused pleaded not guilty to the charges and a date for trial was fixed for
March 7.
On March 7 the trial was adjourned for March 18. The journal entry of March 18
states :-
" Accused present. Complainant was murdered to-day. As I have filed the plaint I
shall not make a final order. Call case on March 25."
On March 25 the accused were present and were represented by counsel, Mr.
Tennekoon, who contended that the complainant was dead and the case must abate.
He asked time to cite authorities in support of this contention. On March 29
accused were again present and Mr. Tennekoon for them stated that he had not
been able to find any authorities on the point taken by him on the last date,
but he cited section 194 of the Criminal Procedure Code. It is not clear whether
Mr. Tennekoon pressed the motion. No order appears to have been made upon it.
On this date the Police moved to add a charge against all the accused for
causing hurt to Carl Ameretunge as well.
The application was allowed but the Magistrate added that :-" Carl Ameretunge is
absent ; before I frame this charge the evidence of Carl Ameretunge must be
recorded. Cite Carl Ameretunge for April 3."
On April 3 the evidence of Carl Ameretunge was taken in the presence of the
accused, and after his evidence was taken the Magistrate framed an additional
charge against the accused of causing hurt to Carl Ameretunge under section 314.
The trial was then fixed for April 8, and was adjour
