1938 Present: Moseley, Keuneman and de Kretser JJ.

ATTAPATTU v. PUNCHI BANDA.

45-P. C. Ratnapura, 17,623.

Criminal Procedure-Charge under section 180 of Penal Code-Plaint not sanctioned by Attorney-General nor instituted by Public Officer-Objection taken at close of prosecution-Powers of Supreme Court-Criminal Procedure Code, s. 425.

The accused was charged with having given false information to the Excise Commissioner an offence punishable under section 180 of the Penal Code. Proceedings commenced with a written report under section 148 (1) of the Criminal Procedure Code by a Superintendent of Excise. The plaint was not sanctioned by the Attorney-General but it bore the endorsement of the Excise Commissioner, ?I sanction the prosecution?. At the close of the case for the prosecution, Counsel for the accused took the objection, that the Court had no right to take cognizance of the case inasmuch as the provisions of section 147 (a) of the Criminal Procedure Code had not been satisfied. The Magistrate overruled the objection.

Held, that the Magistrate was right in proceeding to determine the case as the objection had been taken at a time when the irregularity could not have been cured.

Held, further, that the Supreme Court had power in such a case to act under section 425 of the Criminal Procedure Code where it is satisfied, that the irregularity had not occasioned a failure of justice.

Halliday v. Kandasamy (14 N. L. R. 492 ) followed; Inspector of Police v. Meera Saibo (3 C. W. R. 149) referred to.

THE accused-appellant was charged under section 180 of the Ceylon Penal Code with having given to the Excise Commissioner, a public servant, false information with intent to cause him to use his lawful power to the injury of an Excise Inspector. Proceedings were instituted on a report made by a Superintendent of Excise and across it there was the superscription ?I sanction this prosecution. Signed S. H. Wadia, Excise Commissioner". The accused who was convicted appealed. The appeal was argued before His Lordship the Chief Justice who referred the matter to a Bench of three Judges. The terms of reference are set out in the judgment of Moseley J.

Colvin R. de Silva, for accused, appellant. -The finding of facts are not canvassed. The point to be decided is technical but substantial. At the close of the prosecution the Counsel for the accused submitted that the action was not properly constituted in that that the plaint was not filed with the sanction of the Attorney-General nor by the Excise Commissioner as required by section 147 (1) of the Criminal Procedure Code 1898. The person concerned in section 147 (1) (a) is the person to whom the complaint was made. It implies that the Court cannot determine an action unless its provisions are complied with. Hence when it is brought to the notice of the Court that they are not complied with, the Court has no jurisdiction to proceed with the action. The irregularity cannot be cured in the lower Court with the help of section 425 of the Criminal Procedure Code. Even if it was curable it should have been done when it had the right to do so and not after the close of the prosecution.

The purpose of -the provisions of section 147 is to create a class of persons who alone can launch prosecutions under section 180 of the Ceylon Penal Code. It was held in Inspector of Police v. Meera Saibo 1 that section 147 had been enacted to prevent frivolous prosecutions. They are imperative as far as the lower Court is concerned.

Section 425 applies only when the Magistrate has acted in inadvertence. Section 537 of the Indian Criminal Procedure Code corresponds to section 425 of the Ceylon Code. See Nilvatan Sen v. Jogesh Chundra Bhutta-charjee 2.

J. W. R. Ilangakoon, K. C., A. G. (with him E. H. T. Gunasekera, C. C.), for complainant, respondent. - Section 425 of the Criminal Procedure Code, 1898, imposes a