041-NLR-NLR-V-46-SHERIFF-DEEN-Appellant-and-THOMAS-Respondent.pdf
BOSE J.—Sheriff Dten and Thomas.
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1944Present: Rose J.
SHERIFF DEEN, Appellant, and THOMAS, Respondent.
033—M. C. Colombo, 42,129.
Criminal procedure—Witness recalled by Magistrate—Defence not allowed tocross-examine witness on matters elicited—Illegality—Criminal ProcedureCode, s. 189 (2).
Where a Magistrate recalled a witness, who gave material evidenceand Counsel for the defence was not allowed to cross-examine the witnesson the matters further elicited,
Held, that the conviction could not be sustained in view of tbeprovisions of section 189 (2) of the Crminal Procedure Code.
PPEAIi against a conviction by the Magistrate of Colombo^
Nihal Ounesekere (with him P. Malalgoda) for appellant.
T. S. Fernando, C.C., for the Crown.
February 16, 1945. Rose J.—
This is a most unfortunate matter in which there would appear to beample evidence on the record which would justify the conviction of theappellant. Counsel for the appellant however raises a point of law. Itappears on page 10 of the proceedings that the complainant who allegedthat his pocket was picked was recalled by the Magistrate and questionedbecause the Magistrate wished a certain point or points to be cleared upto the satisfaction of his own mind. The witness was recalled anddescribed the position of the money Rs. 250 in his pocket. He describedthe bundles, how much was in each bundle, &c., and he says in additionthat he had a note book which was separate, not tied to the cash bundles.Counsel for the defence then asked for permission to cross-examine thecomplainant on these points which he was clearly entitled to do under theprovisions of section 189 (2) of the Criminal Procedure Code. TheMagistrate refused his application.
The defence was a denial and when the Magistrate came to deliver hisjudgment he referred to these matters elicited when the witness wasrecalled, which indicates that he relied to some extent at any rate uponthese matters.
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BOSEf 3.—Sheriff Deen and Thomas.
Mr. Fernando has asked me to say that no injustice has followed asthere was abundant evidence" apart from those matters which wouldjustify the conviction, of this appellant. I feel, however, that in theabsence of a section expressly giving an appellate court such a discretionit would he' rather stretching section 425 of the Criminal Procedure Codeto apply it to a case where the accused or his advocate was not permittedto cross-examine on material matters a witness recalled by a Magistrate.
It seems to me that in this paricular case it is not open to the Crownto take the view that there was nothing material in the evidence soadduced, owing to the fact thai the Magistrate referred to it and reliedupon it in his judgment. For these reasons the appeal will be allowedand the case remitted for re-trial.
N > '
Appeal allowed.Case remitted.