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DE SILVA A.J.M. v. MAGISTRATE.
NLR44V320
1943 Present: de Kretser J.
A. J. M. DE SILVA v. MAGISTRATE, GAMPOLA, AND
POLICE: INSPECTOR HERAT.
IN THE MATTER OF AN APPLICATION FOR A WRIT OF Mandamus
IN M. C. GAMPOLA, 4,421
Writ of mandamus-Cas pending before Magistrate-Case instituted by Police-Right
of complainant's proctor to appear-Criminal Procedure Code, s. 148 (1) (b).
Where proceedings are instituted in a Magistrate's Court on a report by a police
officer under section 148 (1) (b), a police officer is not entitled to conduct
the prosecution.
A proctor retained by the complainant has the right to appear for him and
conduct the prosecution.
THIS
was an application for a writ of mandamus on the Magistrate of Gampola.
H. V. Perera, K.C. (with him S. P. Wijeyewickreme) in support.
G. E. Chitty, C.C., as amicus curiae.
Cur. adv. vult.
July 7, 1943. DE KRETSER J.-
The point raised in this application is said to arise rather frequently in
recent times, and both the Attorney-General's Department and members of the
legal profession are anxious that it should be authoritatively decided. I was
inclined, therefore, to have the case sent up before
a Divisional Bench, but when I saw that the trial of this summary offence had
started so far back as May 25, 1942, and had been held up from July of that year
by reason of this application, I decided that further delay was undesirable.
The question has been touched upon by Keuneman J. in the case of Grenier v.
Edwin Perera[ 42 N. L. R. 377.] but his remarks were made obiter and the matter therefore has to be
considered afresh.
In that case a police constable had been charged with causing grievous hurt with
a club. Proceedings started with a written report under section 148 (1) (b) of
the Criminal Procedure Code by Sub-Inspector Grenier. After a preliminary
discussion the magistrate had allowed the Assistant Superintendent of Police to
conduct the prosecution. The accused was acquitted and the injured party moved
this Court in revision. Objection was taken that he had no status, and
eventually the case , seems to have been considered on its merits, but it is not
clear whether this was done' because he had a status. It was when considering
the question of status that Keuneman J. considered the terms of section 199 of
the Code. He seemed to think that the injured person may be regarded as a
complainant, that Sub-Inspector Grenier also may be regarded as a complainant,
and that the Assistant Superintendent of Police came within the words " any
officer of any government department" in that section, and that it was a matter
for the magistrate to decide, in his discretion, as to who should conduct the
prosecution. In other words, he seemed to think that more than one person might
claim the right under that section and the magistrate would then decide between
the conflicting claimants. He did not indicate on what lines the magistrate
should exercise his discretion. To my mind it seems unlikely that the Code would
have left the matter in such a doubtful position, and that in most cases-if not
in all cases-the decision of the magistrate would be arbitrary.
Section 2 of the Code defines the word " complaint", and the natural inference
would be that the person making a complaint is the complainant. But I think it
is necessary to distinguished between a person making a complaint and a, person
instituting proceedings under section 148 of the Code. If one analyses the
definition of " complaint" it gives the word its ordinary meaning but restricts
it to offences and to complaints made to a magistrate. It is not concerned with
the method employed in bringing a complaint before a magistrate. A magistrate,
in the Code, represents the first judicial officer who deals with an offence. He
is not concerned with grievances which are not offences, and, however much a
person may have a grievance or complaint to private parties, proceedings in a
Court will n
