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THE ATTORNEY-GENERAL v. SILVA.M. D. J.
NLR61V454
1959 Present: H.
N. G. Fernando, J.
THE ATTORNEY-GENERAL, Appellant, and M. D. J. SILVA,
Respondent
S. C. 453-M. C. Kurunegala, 32206
Charge-Summary procedure-Failure to frame charge properly-Discovery of after
closure of defence-Resulting position-Criminal Procedure Code as. 181, 190.
Where, in a summary trial, after the closure of the case for the prosecution and
the announcement by the defence not to lead evidence, it was discover that the
so-called "charge sheet " was a mere blank form which contain no charge but only
the record of the accused's plea of not guilty-
Held, that the proper order which the Magistrate could have
lawfully me at that stage was one of acquittal under section 190 of the Criminal
Procedure Code.
APPEAL
from a judgment of the Magistrate's Court,
Kurunegala.
Ananda Pereira, Crown Counsel, for the Attorney-General.
A. H. C. de Silva, Q. C., with M. M. Kumarakulasingham, for 1
Accused-Respondent.
Cur. adv. vult.
April 24, 1959. H. N. G.
FERNANDO, J.-
The accused in this case was alleged to have committed certain offer against
the Betting on Horse-Racing Ordinance. A report in to behalf under Section 148
(1) (b) of the Criminal Procedure Code' made to the then Magistrate of
Kurunegala on 18th June 1957, an
charge was framed on the same
day, but the trial was postponed more than once, apparently upon application
made by the prosecution. On 31st January 1958, the prosecution successfully
moved to amend their plaint and a fresh report under Section 148 (1) (b) was
filed. The same Magistrate then recorded the evidence of the Police Officer (who
filed the report), and thereafter made the following entry on the record :-" The
accused is now charged from the amended charge sheet. He states 'I am not
guilty'. Trial on 24.3." On that date, the trial was again postponed for 12th
May 1958, also upon an application by Crown Counsel. The evidence for the
prosecution was heard on 12th May and on 18th June by the new Magistrate and the
case for the prosecution was closed.
The accused was then called upon for a defence, but no evidence was led on his
behalf, and the accused's counsel addressed the Magistrate on the facts. The
learned Magistrate thereafter discovered that the so-called "amended charge
sheet" was a mere blank form which contained no charge, but only the record of
the accused's plea of not guilty, and invited the assistance of Crown Counsel in
the situation that had arisen. Crown Counsel apparently argued that Section 187
of the Code does not require a charge to be written, that although in this case
the Magistrate was bound to frame a charge himself and not merely to read
particulars from the police report, he could nevertheless have framed it "
mentally", and that (having so framed it) he had in reciting such a charge to
the accused complied with his duty (Section 187 (3)) to read the charge to the
accused. This argument was properly rejected by the Magistrate. It is quite
ridiculous to suggest that anything can be read which is not already in writing
or in print. In the result, no charge was framed and read to the accused and
Section 425 (also relied on by the Crown Counsel) does not assist to cure the
omission-Ebert v. Perera1[I (1922)23 N. L. R. 362.]. Indeed the Attorney-General
on his present appeal does not adopt any of these arguments.
In these circumstances, the learned Magistrate decided that he had no
alternative but to make an order of discharge, and this appeal is against that
order. The position for the Crown now is that when the Magistrate who tried the
case discovered his predecessor's failure duly to frame and read the charge he
should himself have treated the proceedings as null, have framed and read a
charge to the accused and then proceeded to hold a fresh trial. The reported
case to which I have referred above appears indirectly to support this
contention. There, there had bee
