061-NLR-NLR-V-62-M.-A.-PIYASENA-Appellant-and-S.-I.-POLICE-CRIMES-MARADANA-Respondent.pdf
Piyasen-a v. S. I. Police, Crimes, Maradona
263
1959Present : K. D. de Silva, J.
M. A. PIYASENA, Appellant, and S. I. POLICE, CRIMES,
MARADAJNA, Respondent
S. G. 513—M. O. Colombo, 5285}C
Criminal Procedure Code—Section ISO (2)—Duty of Court to permit cross-examination of prosecution witness who gave evidence prior to framingof charge.
Where, lor the purposo of framing a charge against the accused, the Magis-trate had recorded the evidenco of a police officer but, at the trial, this witnesswas not tendered to the accused for cross-examination—
Held, that tho failure to comply with the provisions of section 189 (2) of theCriminal Procedure Code was not merely an irregularity but amounted to anillegality. •*
•* USS4-S5) 14 Q. B. D. 141.
264
K. D. DE SILVA, J.-T-Piyasena v. S. I. Police, Crimes, Maradona
j^i. PPEAL from a judgment of the Magistrate’s Court, Colombo.
Sir Lolita, Rajapakse, Q.C., with D. C. W. Wickremasekera, for theAccused- Appellants.
Ian Wihramanayahe, Crown Counsel, for the Attorney-General.
July 14, 1959. K. P. de Silva, J.—In this case the first, second, and third accused who are the appellantswere charged along with the fourth accused, who has not appealed, onsix counts. After trial they were convicted on the first three counts,and the appellants were each sentenced to two years’ rigorous imprison-ment while the fourth accused was sentenced to one year’s rigorousimprisonment.
For the purpose of framing a charge against the four accused thelearned Magistrate recorded the evidence of Police Sergeant Gunaratna.Sir Lalita Rajapakse who appears for the appellants submits that thiswitness was not tendered to the accused for cross-examination and there-fore the convictions cannot be sustained. Mr. Wikramanayake, thelearned Crown Counsel concedes that this is so. Under section 189 (2)the accused must be permitted to cross-examine all the witnesses calledfor the prosecution. The failure to comply with the provisions of thesection is not merely an irregularity but amounts to an illegality. Theconvictions of the appellants cannot therefore be allowed to stand.Although the fourth accused has not appealed I would, acting in revision,set aside his conviction also.
The case will now go back to the court below for tiial de novo accordingto law.
Sent back for re-trial.