1950 Present: Jayatileke C.J. and Swan J.

PERERA (S. I. Police), Applicant, and PAULU SUARIS

et al., Respondents

S. C. 538-Application in revision in M. C. Kanadulla, 2,415

Criminal procedure-Prosecution initiated by police officer-Right of private pleader to conduct prosecution-Criminal Procedure Code (Cap. 16), sections 148 (1) (6), 199.

A police officer made a report under section 148 (1) (6) of the Criminal: Procedure Code in respect of the commission of an offence which was triable summarily. On the date of trial he stated that he appeared for the prosecution. A Proctor then appeared and stated that he had been retained by the aggrieved party to conduct the prosecution and claimed the right to do so. The police officer opposed the application on the ground that the prosecution had been initiated by him.

Held, that a police officer who institutes proceedings in the Magistrate's, Court is entitled to appear and conduct the prosecution at the trial. A police officer who makes a written report to a Magistrate comes within the words " complainant " or " any officer of any Government Department " in section 199 of the Criminal Procedure Code.
De Silva v. The Magistrate of Gampola (1943) 44 N. L. R. 320 overruled.

APPLICATION to revise an order of the Magistrate's Court, Kanadulla.

This application was reserved by Jayetileke C.J. for consideration by a Bench of two Judges.

R. R. Crossette-Thambiah, K.C., Solicitor-General, with H. A. Wijemanne. Grown Counsel, and S. S. Wijesinha, Crown Counsel, in support.- The question for determination in this case is whether the police officer who initiated proceedings in the Magistrate's Court under section: 148 (1) (b) of the Criminal Procedure Code has or has not the right to conduct the prosecution. The accused was charged with the theft of coconuts from the land of one Kande Naide. The Magistrate has upheld the claim of Kande Naide to conduct the prosecution by his pleader Mr. O. M. P. Perera. The Magistrate held he was bound by the decision of the Supreme Court in De Silva v. The Magistrate, Gampola [1 (1943) 44 N. L. R. 320].

The right to conduct the prosecution in summary cases such as this is governed by section 199 of the' Criminal Procedure Code. Under this section the right to appear in and conduct the prosecution in summary cases is given to the Attorney-General, to the Solicitor-General, or to a pleader appointed by the Attorney-General. In the absence of these officers the right to appear in and conduct the prosecution is given to the complainant or any officer of any Government Department or any officer of any Municipality, District Council or Local Board in any case in which such complainant or District Council or Local Board or Municipality or Government Department is interested.

On the question as to the meaning to be attached to the word complainant in section 199 of the Criminal Procedure Code there are conflicting decisions of this Court. In Grenier v. Edwin Perera [2 (1941) 42 N.L.R 377.] Keuneman J. was of opinion that a person making a written or oral .

complaint under section 148 (1) (ft) or a Police Officer making a written report under section 148 (1) (b) or yet again the aggrieved person giving information to a police officer when the police officer makes the written report under section 148 (1) (b) may be regarded as coming within the meaning of "complainant" in section 199 of the Criminal Procedure Code. Keuneman J. held further in that case that a police officer who makes the written report under section 148 (1) (b) is an officer of a Government Department interested in such case. But in De Silva v. Magistrate of Gampola (supra) de Kretser disagreed with the view taken by Keuneman J. and held that a police officer who makes a written report under section 148 (1) (b) does not come within the words '"complainant" or "officer of a Government Department" as contemplated by sec