097-NLR-NLR-V-48-SOMADASA-Appellant-and-JEHORAN-Respondent.pdf
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NAGAIJNGAM A.J.—Somadasa v. Jehoran.
1946Present: Nagalingam AJ.
SOMADASA, Appellant, and JEHORAN, Respondent.
S. C. 1,053- C. Colombo South, 7,646
Evidence—Criminal Procedure Code—Production of accused by Police—Examination of witnesses—Section 151 (2)—Framing of charge—Previous evidence read—Magistrate’s Court.
Any evidence recorded before the commencement of a trial even in asummary case cannot be made use of against the accused at the trialeven though that evidence be read over to him and he be given anopportunity of cross-examining the witness who gave such evidence.
A
PPEAL against a conviction from the Magistrate’s Court, ColomboSouth.
Barr Kumarakulasingham, (with him K. C. de Silva), for the accusedappellant.
P. A. de Silva, C.C., for the Attorney-General.
November 28, 1946. Nagalingam A.J.—
The accused in this case appeals from his conviction and sentenceon charges of using criminal force to “one Eugene Gunasekera and ofvoluntarily causing hurt to one M. A. Gunesekera.
On the facts I am far from satisfied that a case has been made out forinterfering with the findings of the learned Magistrate. In fact myview is that the facts abundantly support the conclusion reached by theMagistrate and that a prima jade case has been made out against theaccused.
A point of law has been urged which tends to show that the procedureadopted by the Magistrate must be deemed to be illegal specially in viewof certain previous decisions of this court.
In this case proceedings against the accused would appear to havecommenced upon a report made by a Police officer under section 148 (1) (b)1 (1922) 23 N. L. R. 362.* (1915) 1 C. W. R. 194.
NAGALINGAM A.J.—Somadasa v. Jehoran.
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of the Criminal Procedure Code, but it seems to be the fact that at thesame time the Police officer produced the accused person. That wouldbe in terms of section 148 (1) (d) of the Criminal Procedure Code. Wherethere is both a report under section 148 (1) (b) and the production of theaccused under section 148 (1) (d), it has been held by this court in the caseof Varghese v. Per era1 that in these circumstances it is the duty of theMagistrate to proceed under section 151, sub-section (2) of the Code andexamine on oath the person who has brought the accused and any otherperson who may be present in court and able to speak to the facts of thecase. The learned Magistrate in this case appears to have quite properlyfollowed this course and examined the first witness in this case, namely,Eugene Gunesekera. After he had recorded that evidence the learnedMagistrate in terms of section 187 (1) of the Code framed a charge againstthe accused, to which the accused pleaded not guilty, and the Magistrateset down the case for trial. On the date fixed for trial, the learnedMagistrate commenced the trial by recalling the witness Eugene Gune-sekera and by reading her previous evidence in the presence of theaccused.
Objection is taken that as the learned Magistrate has acted upon theevidence recorded by him prior to the commencement of the trial, thatwas not evidence taken at the trial in the presence of the accused withinthe meaning of section 297 of the Criminal Procedure Code, and that,therefore the proceedings are involved in illegality and that the con-viction therefore cannot stand.
I have examined the relevant provisions of the Code with the assistanceof counsel, and if I may say so, I have reached the conclusion myselfthat a strict construction of the various sections leads one to the con-clusion that any evidence recorded before the commencement of a trialeven in a summary case cannot be made use of against the accused at thetrial even though that evidence be read over to him and even if theaccused is afforded an opportunity of cross-examining the witness whogave such evidence. This view of the matter has been taken in the caseof Wilfred v. Inspector of Police, Panadures where, in regard to evidencerecorded during an investigation by a Magistrate in regard to an offencetriable non-summarily, the evidence recorded by him was made use oflater when he decided to try the case summarily as District Judge.The judgment of the court was delivered by Jayetileke J. with whomRose J. concurred and they held that the admission of that evidence wasan illegality which could not be cured even under section 425 of theCriminal Procedure Code. This view of the matter was adopted evenin regard to a summary case in an unreported judgment delivered byJayetileke J. on the 24th of October, 1946—S. C. No. 729-730; M. C.Colombo 11,949. In this view of the point of law that has been urged,there is no other alternative but to quash the conviction. But as I saidearlier, a prima facie case has been made out against the accused and Iwould therefore set aside pro forma the conviction and send the recordback for proceedings to be taken de novo before the Magistrate.
Sent hack for re-trial.
.* (1942) 43 N. L. B. p. 564.* (1945) 46 N. L. B. 553.