1959 Present: Weerasooriya, J.


TIKIRI BANDA, Appellant, and T. PERIMPANAYAGAM (S. I., Police),
Respondent.

S. C. 790-M. C. Kurunegala, 42487

    Criminal Procedure Code-Presence of accused "on Police bail "-Charge framed on hearsay statements-Irregularity-Sections 151 (2), 187 (1).

Where an accused person is brought before a Magistrate's Court other1 than on a summons or warrant, the requirement of section 187 (1), read v section 151 (2), of the Criminal Procedure Code that the Court should examine on oath a person or persons able to speak to the facts of the case excludes hearsay statements being acted upon. In such a case, therefore, it would Q fatal irregularity if the Magistrate frames a charge solely upon the statement on oath of a police officer who speaks only of information received him from other persons of the commission of an offence by the accused.

APPEAL from a judgment of the Magistrate's Court, Kurunegala.

A. Nagendra, with D. W. Abeykoon, for the accused-appellant.

V. S. A. Pullenayegum, Crown Counsel, with P. Nagendran, Crown Counsel, for the Attorney-General.

Cur. adv. vult

December 7, 1959. WEERASOORIYA, J.-

The accused-appellant was convicted of offences punishable under sections 43 and 44 of the Excise Ordinance (Cap. 42) and sentenced to six months' rigorous imprisonment in respect of each offence, sentences to run concurrently. As he pleaded guilty to the charges appeal lies against the convictions except on a matter of law. The only point of law certified in the petition of appeal is without any substance and the appeal must, therefore, be dismissed.

But learned counsel for the accused, relying on the decision in Mohideen.v. Inspector of Police, Pettah1[1(1957)59 N. L. R. 217.], submitted that notwithstanding the plea of guilty tendered by the accused his convictions are vitiated by reason the Magistrate's failure to comply with the provisions of section 187 (1 the Criminal Procedure Code in regard to the framing of the charges, ; on that ground invited me, in the exercise of my powers of revision set aside the conviction;, and remit the case for a fresh trial in accordance with law.

It appears from the record that on the 17th November, 1958, when the trial took place, the accused was present "on Police bail" and, therefore, otherwise than on summons or warrant. Section 187 (1) of the Criminal Procedure Code requires the Magistrate in such a case to hold the examination directed by section 151 (2) and to frame a charge therafter it he is of opinion that there is sufficient ground for proceeding against the accused. The examination directed under section 151 (2) is an examination on oath of the person who has brought the accused before Court and of any other person who may be present in Court able to speak to the facts of the case. Purporting to act under section 151 (2) the Magistrate examined Police Sergeant Perera of the Kurunegala Police who was present and whose evidence is as follows :-

"On 14.11.58 whilst P. C. 5307 and 2256 were on patrol duty they received information to the effect that this produced accused was manufacturing arrack. They proceeded to Hanwella and at a distance they noticed some smoke going up from the jungle and they quietly approached the place and found the accused manufacturing arrack. They arrested the accused in the act with utensils and also found 6 drums of arrack. The accused was taken into custody with productions and produced at station."

On this evidence, which is plainly hearsay, the Magistrate proceeded to frame the charges to which the accused pleaded guilty.

Mr. Nagendra for the accused submitted that in order to frame a charge under section 187 (1) there should be legally admissible evidence on which the Magistrate can form an opinion that there is sufficient ground for proceeding against an accused. Crown Counsel contended, on the other hand, which in holding a