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ABEYESEKERS v. DE SILVA (INSPECTOR OF POLICE)
NLR46V449
1945 Present: Jayetileke J.
ABEYESEKERE, Appellant, and DE SILVA (INSPECTOR OF
POLICE), Respondent.
605-M. C. Colombo, 774.
Criminal Procedure-Peace officer's right to demand name and address in
non-cognizable cases-Appearance of accused on summons-Particulars of offence
read from plaint-Not a fatal irregularity-Criminal Procedure Code, ss. 33,
187-Police Ordinance, s. 57.
A peace officer can, under section 33 of the Criminal Procedure Code
and section 57 of the Police Ordinance, demand from a person who is
accused of committing a non-cognizable offence in his presence his name
and address.
Where the accused appeared on summons and the Magistrate, instead of explaining
the charge to him from the summons itself, read to him the particulars contained
in the plaint-
Held, that, though the provisions of section 187 of the Criminal Procedure Code
were not complied with, the mistake did not vitiate the proceedings, as the
accused did not suffer any prejudice.
APPEAL
against a conviction by the Magistrate of Colombo.
L. A. Rajapakse, K.C. (with him K. C. Nadarajah and S. W. Walpita), for the
accused, appellant.
G . P. A. Silva, C.C., for the Crown.
Cur. adv. vult.
September 5, 1945. JAYETILEKE J.-
The accused in this case was charged in the Magistrate's Court of Colombo with
having caused hurt to Police Constable Ranasinghe in the execution of his duty
as a public servant, an offence punishable under section 323 of the Penal Code.
He was convicted and sentenced to pay a fine of Rs. 50.
The facts were that on December 21, 1944, at about 4.30 P.M. the complainant was
on duty at Armour Street Junction. One Wijesinghe complained to him that a tram
car Inspector had abused him and his wife
in filthy language when they were travelling in the tram car. He noted the
complaint in his note book, went up to the tram car which was halted there,
informed the accused that a complaint had been made against him and asked him
for his name and address. The accused said " You bloody Constable, I am not
going to give my address to you ", and pushed him by the neck. Two points were
raised by Mr. Rajapakse at the argument before me. His first contention was that
the complainant had no right to demand from the accused his name and address.
The answer to this contention is to be found in the language of section 33 of
the Criminal Procedure Code. The section provides that when any person in the
presence of a peace officer is accused of committing a non-cognizable offence
and refuses on demand of such peace officer to give his name and residence he
may be arrested by such peace officer. The section presupposes that a peace
officer has a right to demand from a person who is accused of committing a
non-cognizable offence in his presence, his name and address. One of the duties
of a Police Officer under section 57 of the Police Ordinance is to detect and
bring offenders to justice. This duty a Police Officer will not be able to
perform, unless he is given the right to demand from an offender his name and
address. The complainant was, in my opinion, well within his rights in demanding
from the accused his name and address.
Mr. Rajapakse's next argument was that the Magistrate had failed to comply with
the provisions of section 187 of the Criminal Procedure Code and, therefore, the
conviction cannot stand. He urged that as the accused appeared on summons it was
the duty of the Magistrate to read to the accused a statement of the particulars
of the offence contained in the summons. The Magistrate had, instead, read to
the accused the particulars contained in the plaint. The question is whether
this mistake vitiates the proceedings in this case. The identical question seems
to have been raised in the case of Boulton v. Sanmugam 1[3 Balasingham's Note of
Cases 46.]. In the course of his
judgment Wood Renton C.J. said-
'' The record, however, shows that the acc
