LAW OF CRIMINAL PROCEDURE
By Chandra Tilake Edirisuriya
The Code of Criminal Procedure Act No. 15 of 1979, in Chapter XVI under the title 'Of the Charge' in Section 164 stating that the charge should state the offences, lays down that (1) every charge under this Code shall state the offence with which the accused is charged; (2) if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only; (3) if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be mentioned as will give the accused notice of the matter with which he is charged; (4) the law and Section of the law under which the offence said to have been committed is punishable shall be mentioned in the charge; (5) the fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case; and (6) the charge shall when it is preferred, whether at the inquiry preliminary to committal for trial or at the trial, be read to the accused in a language which he understands.
In illustration it is said (a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition of murder given in Section 293 and 294 of the Penal Code; that it did not fall within any of the general exceptions of the same Code and that it did not fall within any of the five exceptions to Section 294, or that if it did fall within exception 1, one or other of the three provisions to that exception applied to it; (b) A is charged under Section 317 of the Penal Code with voluntarily causing grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that this case was not provided for by Section 326 of the Penal Code and that the general exception did not apply to it; (c) A is accused of murder, cheating, theft, extortion, criminal intimidation or using a false property-mark. The charge may state that A committed murder or cheating or theft or extortion or criminal intimidation or that he used a false property-mark without reference to the definitions of those crimes contained in the Penal Code; and (d) A is charged under Section 182 of the Penal Code with intentionally obstructing a sale of property offered for sale by the lawful authority of a public servant. The charge should be in these words.
On particulars as to time, place and person, Section 165 lays down in Sub-section (1) that the charge shall contain such particulars as to the time and place of the alleged offence and as to the person (if any) against whom and as to the thing (if any) in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged and to show that the offence is not prescribed.
Act of striking complainant with wooden sandal
In the case of Meera Natchiya v Marikar (1940) 41 NLR 319, the charge was one of voluntarily causing hurt. The Magistrate had found that the act of striking the complainant with a wooden sandal, as alleged by the prosecution, had not been established against the accused but that there was adequate evidence to prove that the accused assaulted the complainant by kicking and also striking with hands and a stick. The Magistrate had held that, owing to the omission to mention in the summons the assault by kicking and by striking with hands and a stick, he was unable to convict the accused of the offence of voluntarily causing hurt.
In appeal Howard CJ disagreeing with this view stated: "I think a reference in the charge to the name of the offence, as specified in the Penal Code, was sufficient to give the accused notice of the matter with which he was charged". It was held, accordingly, that the Magistrate should have convicted the accused of the offence of voluntarily causing hurt under Section 314 of the Penal Code, says Prof. G.L. Peiris, the most prolific writer on the laws of Sri Lanka, in his monumental work 'Criminal Procedure in Sri Lanka' that should adorn even a layman's library.
Some offences created by a statutory rule, regulation or by-law are legally required to be published in the Government Gazette. Is the prosecution bound to produce the Gazette in which the rule, regulation or by-law appears to establish the charge?
In Marambe v Kiri Appu 2 CLW 122 Macdonell CJ said: "The charge was defective, in that there was a failure to specify the Gazette containing the rules which the accused is said to have contravened, and of course the Gazette ought to have been produced". Koch J following this ruling in Inspector of Police v Punchirala 5 CLW 38 said: "There rests on the prosecution the obligation to produce and prove the rule". A similar view was taken by Wood Renton CJ in Lowell v Dandiya 4 Leader LR 124.
Expressing the contrary view in Peries v Theresa Nona (1927) 8 Cey. Law Rec. 116 Lyall Grant J held: "The correct way to set out such a notification in the charge is by reference to the copy of Government Gazette in which it appears". In de Silva v Don Francis Times of Ceylon LR 194 Bertram CJ endorsed this view. The conclusion, that a Gazette is not necessary, has been confirmed by a Bench of three Judges of the Supreme Court in Sivasampu v Juan Appu (1937) 38 NLR 369, per Abrahams CJ. Nevertheless, although production of the Gazette is not essential, reference in the charge to the Gazette is an indispensable requirement, says Prof. G.L. Peiris.
In Appuhamy v Ekanayake (1946) 48 NLR 71, the accused was convicted of having transported wheat without a permit. There was no reference in the charge to the Gazette which constituted the offence. On the contrary reference was made to some other Gazettes which in fact had no application whatever. Nagalingam AJ held that the charge was bad. In Carolis Appu v Assistant Government Agent, Haputale (1945) 46 NLR 262, where the facts were similar and regulations relating to the transportation of grain were involved, a comparable conclusion was reached. The charge was also held invalid in Kandasamy v Navaratnarajah (1944) 45 NLR 546, where there was an omission to specify the order under which the regulation penalizing the act was made.
Failure to hold company general meeting
In Muttaiyapillai v Robert de Silva (1965) 69 NLR 230, in consequence of his failure to hold a general meeting of the company within the prescribed period, a Director of a private company which had been registered under the Companies Ordinance was prosecuted for failing to take all reasonable steps to lay before the company, at a general meeting, a profit and loss account, a balance sheet and the report of the Directors, as required by law. Counsel for the accused submitted that the charge was defective, in that the prosecution did not specify what reasonable steps the accused had failed to take to comply with the provisions of the law. According to this argument, it was only when the prosecution detailed these steps that the burden was cast on the accused to satisfy the Court that he had in fact taken all reasonable steps. The argument on behalf of the prosecution was that the charge contained reference to the legal provisions which had not been complied with by the accused – the culpable act on his part consisting of the failure to lay before the company the three documents adverted to. Alles J adopted the view that the law cast on the Directors the duty of compliance with these provisions and, if it is not done, it must follow (in the absence of an explanation) that the failure to comply is due to the fact that the Directors had not taken all the necessary steps to ensure that a general meeting was held to enable the relevant documents to be tabled within the prescribed period. It was held, therefore, that the charge was sufficient.
In Muttaiyapillai's case the Counsel for the accused endeavoured to derive support for his argument from two cases decided under the Motor Traffic Act. This Act requires the driver of a motor vehicle on the highway to take such action as may be necessary to avoid an accident.
In Perera v Perera (1957) 59 NLR 64 and Doray v Inspector of Police, Dehiwala (1959) 61 NLR 152, it was held, respectively, by H.N.G. Fernando J and by Basnayake J that a charge under this statute, to be valid, should contain such particulars as are necessary to give the accused notice of the allegation made by the prosecution.
Motor Traffic Act
The Supreme Court concluded that the situations envisaged in these two cases were not in pari materia with the facts of Muttaiyapillai v Robert de Silva. The relevant Section of the Motor Traffic Act, it was observed, was not designed to penalize the driver of a motor vehicle because he meets with an accident. It must be proved that the accident took place because the accused failed, in breach of his duty, to take such action as was necessary to avoid the accident in respect of which he was charged. Consequently, there was no analogy with the problem that arose in Muttaiyapillai's case. Alles J stated: "Under the Motor Traffic Act there is a general duty cast upon the driver of a motor vehicle to avoid an accident and, if he fails to do so, he becomes liable under the Section. It may be that he failed in his duty to avoid the accident by doing some lawful act. It is, therefore, understandable that, in such a case, he should be informed of what steps he should have taken to avoid the accident". This reasoning, however, was thought to be inapplicable to the obligation which devolved on the Director of a Company under the Companies Ordinance, says Prof. Peiris.
In Rupasinghe v Perera (1958) 60 NLR 505, Pulle J stated that where the time of the commission of the alleged offence is of some importance, the accused should be provided with full particulars in this regard, so that the accused may have sufficient notice of the matter with which he is charged.
In Duraya v Appuhamy (1920) 21 NLR 413, four persons from two different boutiques were charged with "selling rice at various dates in December 1919, at 34 cents per measure, above the controlled price – an offence under the Defence of the Colony Regulations – at Attange, Udagama". The charge was held to be invalid. Bertram CJ said: "It does not particularize the sales which are said to have been an infringement of the regulations. It merely refers to various dates in December 1919. No person accused under this charge could have had an opportunity of dealing with the facts alleged against them as they ought, according to our system of justice.
In Inspector of Police, Ambalangoda v Fernando (1919) 6 CWR 296, also, the charge failed, because it did not specify the particular time and place at which the alleged offence was committed, nor did the charge state what the controlled price of rice was at the time.
In Miskin v Babun Appu (1920) 21 NLR 492, the accused was charged with having sold rice above the controlled price. Neither the complaint nor the charge specified any person to whom the rice was sold. The controlled price, again, was not stated. The evidence consisted of testimony given by three witnesses who each to the sale of rice by the accused to him, but none of them made any reference to the sale of rice by the accused to the others. In appeal, de Sampayo J held that the proceedings were irregular, as the charge was defective.
In Abesuriya v Jayasekare (1921) 22 NLR 380 the charge did not give particulars as to the quantity of rice sold or the person to whom it was alleged to have been sold. Four witnesses were called by the prosecution to prove that, on the day in question the accused sold to each of them a quantity of rice for a sum in excess of the controlled price. Schneider AJ held that the conviction was bad, on the ground that the charge did not furnish the necessary particulars and that the accused was apparently convicted of four distinct offences.
In Ariyadasa v Inspector of Police, Nawalapitiya (1971) 75 NLR 134 the prosecution was for selling a price-controlled article at an excessive price. Samarawickrame J held that the failure, to state in the charge the name of the person to whom the article was sold, would not per se vitiate the conviction of the accused, if the accused was not misled by the omission.
In Pakir Saibo v Nayar (1940) 42 NLR 151, the accused, a consumer of electrical energy supplied by a local authority, stood charged with having broken or tampered with, or having permitted a person other than an employee of the local authority to break or tamper with, any seal or any part of the apparatus in breach of a by-law framed under the Local Government Ordinance. Wijeyewardene AJ dealt with the question of duplicity of charges, but did not decide whether this defect was necessarily fatal to the conviction.
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