136 1 B and 182 of the CPC - Animals Act - confiscation of vehicle- Legality

            In the Court of Appeal of the Democratic

                 Socialist Republic of Sri Lanka

CA PHC 108/2010                                                                    HC Anuradapura Revision 34/2010                       MC 866

Abubackerge Jaleel Vs  OIC,Anuradapura

Before:  A W A Salam, J (P/CA) and Sunil Rajapakse,J

Cousel: Upali A Gunaratna, PC with Mahesh Wakishta for the Claimant-Petitioner-appellant and Anoopa De Silva SSC for the Complainant-Respondent-Respondent and Hon Attorney General.

Argued on: 21.02.2014 and 25.06.2014.

Decided on : 26.08.2014

                                               

A W A Salam, J (P/CA)

T

he facts relating to the present appeal are that the accused-respondent-respondents (hereinafter referred to as the “accused”) were allegedly charged in the Magistrate’s Court for causing cruelty to certain animals, an offence punishable under Section 2 (1) (1) of the Cruelty to the Animals Act and transportation of 36 heads of cattle (presumably without a written sanction) an offence is said to be punishable under Section 5 (3) (c) (1)[1].

In terms of Section 136 (1) (b) of the Code of Criminal Procedure Act, institution of proceedings in a Magistrate's Court inter alia takes place upon the presentation of a written report complaining that an offence has been committed which such court has jurisdiction either to inquire into or try by an inquirer appointed under Chapter XI or by a peace officer.

The offences referred to in the 1^st paragraph of this judgment were reported to have been committed by the accused-appellants as per the report filed by the complainant-respondent-respondent under Section 136 (1) (b) of the Code of Criminal Procedure Act.

Once the report is filed under Section 136 (1) (b) of the Code of Criminal Procedure Act, the next step is to ascertain under Section 182 of the Code of Criminal Procedure Act whether there is sufficient ground for proceedings against the accused and then frame a charge against him. Once the charge is framed the Magistrate shall read it to the accused under 182 (2) and ask him if he has any cause to show why he should not be convicted.

When the Magistrate frames the charge based on the information furnished under Section 136 (1) (b) then he moves on to Section 183. Generally Magistrates themselves do not frame charges in every case but along with the report a draft charge is tendered for the Magistrate to consider accepting the same as the charge which he usually accepts if in accordance with the facts revealed. Even though the charge in such an instance is tendered by the prosecution, yet in law it is the charge framed by the Magistrate.

Once the charges framed, Under Section 183 the Magistrate is expected to ask the accused whether he has any cause to show as to why he should not be convicted. In response to it, if the accused makes a statement which amounts to an unqualified admission that he is guilty of the offence of which he is accused, his statement shall be recorded as nearly as possible in the words used by him and the Magistrate shall record a verdict of guilty and pass sentence upon him according to law and shall record such sentence.

What steps to be taken if the accused does not make an unqualified admission of guilt does not arise in this case and therefore omitted from this discussion.

Even though the accused are said to have been explained the charges according to the rubberstamp placed on the back of the plaint filed under Section 136 (1) (b) there is no charge sheet found in the original case record or in the brief. This clearly demonstrates the failure on the part of the learned Magistrate to frame a charge against the accused under Section 182.

In Abdul Sameem V. The Bribery Commissioner 1991 1 SLR 76, this Court considered the consequences of the failure to frame a charge under 187. The case of Abdul Sameem concerns the institution of proceedings under Section 136(1) (b) of the Code of Criminal Procedure Act 15 of 1979, on a written report by the Bribery Commissioner to the Magistrate that the accused committed certain offences under the Bribery Act. The accused appeared on summons. The Magistrate adopted the said report by placing a seal. It was held that that there was a failure to frame a charge by the Magistrate as required under Section 182(1) and read it to accused as contemplated under Section 182(2). It was specifically held that the failure to frame a charge, as required under Section 182(1) is a violation of a fundamental principle of criminal procedure, and is not a defect curable under Section 436 of the Code of Criminal Procedure Act No. 15 of 1979. Quite significantly, the court  whilst appreciating the pressures on time and the large volume of work the Magistrate's Courts are called upon to handle,  nevertheless held that it is important, that rights of  the accused are safeguarded and that they are brought to trial according to accepted fundamental principles of criminal procedure.

The learned president’s Counsel has submitted that the indispensability of a charge for the validity of criminal prosecution or conviction is now well established in our law and the absence of a charge is fatal to the validity of the trial and conviction as well. This principle has been exhaustively discussed in the case of Abdul Sameem (supra) in reference to a long line of decided authorities including a full bench decision.

The learned Senior State Counsel has contended that it is not open for the complainant-petitioner-appellant to challenge the conviction now as the accused-respondent-respondents have not challenged the conviction. This argument did not impress me as the correct proposition of the law.

An order of confiscation is in fact a punishment which is imposed in addition to the ordinary punishment imposed on the offender. However, if the vehicle in this type of offence is used by the offender does not belong to him, after affording an opportunity to the owner of the vehicle of being heard against an order of confiscation being made, the court is entitled to confiscate the vehicle.

The confiscation of the vehicle has to be based on a conviction which is acceptable in law. If there is no conviction, then there is no confiscation. In other words, a valid conviction is a condition precedent to proceed to call upon the owner of the vehicle (if he is not the offender).

An accused cannot be said to have been lawfully convicted in the absence of a charge framed by the Magistrate in terms of Section 182 (1) and explained under Section 182 (2) of the Code of Criminal Procedure Act. In such an instance, the conviction has to be set aside, as the accused cannot be subject to any punishment or condemnation without compliance of Section 182 (1).

In this case, since the accused-respondent-respondents have been charged from the report filed under 136 (1) (b) of the Code of Criminal Procedure Act and the rubberstamp having been placed on the reverse of the said report it is the only illative conclusion that there had been a blatant violation of the fundamental procedural law. Had the accused-respondent-respondents invited an appellate court either in its exercise of the appellate jurisdiction or revisionary jurisdiction as the case may be, to set aside the conviction, it would have been most likely that the court would have proceeded to overturn the conviction.

The question the learned Senior State Counsel has then raised is the locus of the claimant-petitioner-appellant to challenge the conviction when the accused-respondent-respondents have not elected to do the same. It has to be borne in mind that an order of confiscation of property whether movable or immovable leads to deprivation of property rights of a citizen. Inasmuch as the court has to approach the issue relating to the liberty of the subject by means of a strict interpretation of the provisions of the law, the same approach has to be aimed at in resolving the issue relating to the legality of the confiscation as well.

Simply because the accused-respondent-respondents have not have chosen not to challenge the conviction, such a conviction which is unlawful cannot be pronounced as legal, when the defect is brought to the notice of court by a person who is in fact aggrieved by the conviction. One cannot forget that it is the very unlawful conviction which has culminated in the claimant-petitioner-appellant to part with this vehicle.

In the circumstances, I am of the opinion that the claimant-petitioner-appellant has made out a strong case with exceptional circumstances warranting the invocation of the revisionary powers of the High Court against the order of confiscation made by the learned Magistrate. To send this case back to the High Court to hear the revision application would prolong the agony and I am therefore of the opinion that the ends of Justice would be met by quashing the order of confiscation entered by the learned Magistrate.

Appeal allowed and the order confiscating vehicle bearing No WP GG 3436 is set aside.

President/Court of Appeal

Sunil Rajapakse, J

I agree.

Judge of the Court of Appeal