QUESTION 2(D) DECEMBER 2018.

In the meantime, on 8 June 2018, Anggur was also charged for committing sexual offence
against Cantik at the Magistrate Court in Shah Alam. Frustrated with the incident,
Anggur's wife, Concita slapped Nenas (Anggur's brother) across his face, shouting and
crying at him, "What Anggur did just runs in the family! I hate your family!." Feeling
bruised and deeply embarrassed about the incident, Nenas subsequently applied to
Rasputin, the Magistrate, for a summon to be issued against Concita for committing an
offence under Section 323 of the Penal Code. A written notice was duly served on the DPP.
Upon being satisfied with the medical report submitted by Nenas detailing the injury
suffered by him, Rasputin did not find it necessary to call Nenas for an examination and
ordered for the summons to be issued against Concita. 

d) Discuss the propriety of the summons issued by Rasputin against Concita. 

ANSWER

The issue is whether or not the summons issued by Rasputin against Concita is void.

Section 2(1) CPC defines ‘summons case’ as a case relating to an offence and not being a warrant
case. In order to issue the proper process to compel the attendance of an accused person, it is
incumbent upon the court to firstly determine whether the offence falls under a summons or a
warrant case.

Section 34 of the CPC states that every summons to appear issued by a court under this code shall
be in writing and signed as provided by the Courts of Judicature Act 1964, or the Subordinate
Courts Act 1948, and shall bear the seal of the Court.

Section 133(1) explains on an application made for the issue of issue of process to initiate criminal
proceedings against some person, the magistrate shall hold an examination after serving due notice
on the Public Prosecutor in writing at least seven clear days before the examination. In the case of
Re Rasiah Munusamy, the very first thing the the magistrate must do upon receipt of a complaint
under Sec. 133 is at once to examine the complainant upon oath and reduce the substance of the
examination into writing which shall be signed by the magistrate and the complainant. It was held
that a person complained against is not a party to the proceedings for he is not yet an accused
person and is in no position to claim a right to be represented. However, he is entitled to attend the
examination like any member of the public though he has no locus standi as a party, and a
magistrate may examine or question him. There is no doubt that the requirements outlined under
the provision are mandatory, their object being to enable the magistrate to decide on the reliability
of the complaint which he will depend upon to decide whether or not a process should issue .In
this case, there was not even a semblance of compliance with the requirements, causing the issue
of a warrant of arrest by the magistrate to have been made without jurisdiction and was, therefore,
void.

Firstly, we will identify whether Concita’s situation would fall under summons case. A summon
has been issued against Concita for commiting an offence under Section 323 of the PC. Section
323 of Penal Code states the punishment for voluntarily causing hurt where the accused shall be
punished with imprisonment for a term which may extend to one year or with one which may
extend to two thousand ringgit or with both. The offence under Section 323 of the PC is a
summons case, is non-seizable can be compounded in the court, where parties concerned can have
all their options judicially ventilated. Thus, it is correct in law when the summons is issued against
Concita as Concita’s offence is under Section 323 of PC, which is a summons case and non-
seizable. Plus, the written notice served on DPP was procedurally correct in accordance with
Section 34 of the CPC.

However, Section 113(1) of CPC compiles Nenas, as the complainant, to be put on an

examination upon oath, and reduced the substance of the examination into writing which shall be
signed by Rasputin and Nenas. Without an examination against a private complainant, there will
be no reliability to be weighed by the Magistrate which he will depend upon to decide whether or
not a process should issue. Rasputin has failed to call Nenas for an examination of the
complainant. Thus, based on the judgment from the case of Re Rasiah Munusamy, failure to
comply with requirements under Section 113(1) would deprive the issue of summons produced by
Rasputin against Concita to be void.

In conclusion, the summons issued by Rasputin against Concita is void as it fails to comply the
requirement under Section 113(1) of CPC.