Martin Appuhamy V. S. I. Police, Jaffna

1962 Present : Basnayake, C. J., H. N. G. Fernando, J.,
and Sinnetamby, J.

MARTIN APPUHAMY, Appellant, and SUB-INSPECTOR OF POLICE,
JAFFNA, Respondent

S. C. 1003 of 1959-M. C. Jaffna, 17,894

    Criminal procedure-Accused produced in custody without process-Plaint filed by Police-Duty of Magistrate to record statements on oath before framing charge- Inadmissibility of hearsay statements-Criminal Procedure Code, ss. 121 (1), 122 (3), 126A, 127, 148 (1) (a) (b) (c) (d) (e) (/), ISO, 151 (1), 151 (2), 187 (1) - Evidence Ordinance, ss. 2 (1), 60;

    The decision in Mohideen v. Inspector of Police, Pettah (59 N. L. R. 217) is applicable to all cases where an accused person is brought before a Magistrate in custody otherwise than on a summons or a warrant.

    The accused had first been produced by the Police with a report under section 126 (A) of the Criminal Procedure Code and remanded pending investigations. On a subsequent date the police filed plaint under section 148 (1) (b).

    Held, that, before framing a charge against the accused, it was incumbent on the Magistrate to have recorded statements on oath as required by sections 151 (2) and 187 (1) of the Criminal Procedure Code.

    Lamanatissa de Silva v. S. I. Police, Matara (62 N. L. R. 92), overruled.

    Held further (H. N. G. FERNANDO, J., dissenting), that Tikiri Banda v. Perimpanayagam (61 N. L. R. 286) rightly decided that in every case where section ]87 (1) of the Criminal Procedure Code renders an examination under section 151 (2) necessary, a charge cannot be framed against an accused person unless and until " a person able to speak to the facts of the case " has been examined, and that hearsay statements cannot be acted upon for the purposes of framing a charge in such a case.

    TWO questions reserved under section 48 of the Courts Ordinance for decision of more than one Judge.

    M. L. de Silva, with K. Jayasekera, for Accused-Appellant.

    D. St. C. B. Jansze, Q. C., Attorney-General, with Ananda Pereira, Senior Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, for Complainant-Respondent.

Cur. adv. vult.

April 11, 1962. BASNAYAKE, C. J.-

    The following questions were reserved by my brother T. S. Fernando under section 48 of the Courts Ordinance :-

    (a) " Is the decision of the Court in Mohideen v. Inspector of Police, Pettah1[1 (1957) 59 N. L. R. 217. ], applicable only in the case of accused persons against whom proceedings have been instituted under section 148 (1) (d) of the Criminal Procedure Code ? "

    (b) " Does the decision in the case of Tikiri Banda v. Perimpanayagam2[ (1959) 61 N.L.R. 286.] in so far as it excludes the admission of hearsay upon an examination of a person in terms of section 151 (2) of the Criminal Procedure Code -correctly interpret the relevant provision of law ?

    A Bench of three Judges was constituted for their determination in accordance with an order in that behalf made by me under section 48A of the Courts Ordinance.

    In regard to the first question, Mohideen v. Inspector of Police, Pettah, deals with a case for which provision is made in section 151 (2), i.e., where proceedings have been instituted under paragraph (d) of section. 148 (1). That paragraph deals with the case in which a person accused of an offence is brought before a Magistrate in custody without process. For the purposes of section 187 (1) such a person would be an accused who is brought before the Court otherwise than on summons or warrant. That provision requires that the Magistrate shall, in accordance with the direction in section 151 (2), first examine on oath the person who has brought the accused before the Court and any other person who may be present in Court able to speak to the facts of the case, and if on such examination he forms the opinion that there is sufficient ground for proceeding against the accused, frame

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