HOWARD C.J.—Abeysinghe v. Menika.
1912Present: Howard C.J.
ABEYSINGHE v. MENIKA.347—M. C. Matale, 9J225
Criminal Procedure—Report to Magistrate—Accused absconding—Examination
of complainant—Assumption of jurisdiction by Magistrate as District
Judge—Reading over of complaint’s evidence at trial—Criminal
Procedure Code, s. 151 (1), proviso (ii), and s. 297.
On a report made under section 148 (b), a Magistrate, after recordingthat the accused was absconding, proceeded to hear the evidence of thecomplainant.
When the accused appeared, the Magistrate, after informing him,assumed jurisdiction as Additional District Judge and proceeded totrial.
The complainant was recalled and his previous evidence was readover to him and he was subsequently cross-examined by the accused’sCounsel.
Held, that the proceedings were regular and that the Magistrateacted in accordance with the provisions of section 151 (1), proviso (ii),and section 297 of the Criminal Procedure Code in reading out theevidence of the complainant to the accused.
Musafer v. Wijeysinghe (43 N. L. R. 61), followed:
^ PPEAL from a conviction by the Magistrate of Matale.
S. R. Wijayatilake, for the accused, appellant.
G. E. Chitty, C.C., for the complainant, respondent.
Cur. adv. vult.
June 18, 1942. Howard C.J.—
The appellant in this case appeals from his conviction by the Magistrate,Msiale, on charges of housebreaking and theft. It has also been urgedon his behalf that, inasmuch as the appellant was a first offender, thesentence errs on the side of severity. The main ground of this appeal isbased on a question of law. Proceedings against the appellant wereset in motion by a report made on January 19, 1942, by Police SergeantAbeysinghe, under section 148 (b) of the Criminal Procedure Code. Onthat report being made, the Magistrate, after recording that the accusedwas absent absconding, proceeded to hear the evidence of the com-plainant. He then issued a warrant on the accused under sections 440and 369 of the Penal Code for February 2. On February 2, the accusedappeared. The Magistrate then stated that he was hearing the caseas Additional District Judge under section 152 (3) of the CriminalProcedure Code and the accused was so informed. On April 13, theMagistrate proceeded with the trial. The complainant was recalledand his previous evidence read over to him. His examination-in-chiefwas continued and he was subsequently cross-examined by Counsel forthe accused. Further evidence for the prosecution and evidence for thedefence was taken and the accused was found guilty. It has beencontended by Counsel for the appellant that the trial is vitiated by the
420HOWARD C.J.—Abeysinghe v. Menika.
fact that on February 13 the Magistrate did not start “ de novo butmerely read over the previous evidence of" the complainant which hadnot been taken in the presence of the accused. He relies for this con-tention on the case of K. H. Don Dionis and another v. W. B. Piyoria andothersdecided by Hearne J. on March 23, 1942. In this judgment,Hearne J. cited the recent case of Musajer v. Wijeysinghe where it washeld that, when evidence is properly recorded in the absence of theaccused, i.e., under section 151(1), proviso (ii), section 297 applies.
Hearne J. then went on to consider the position that would arise in regardto evidence which has been recorded under section 151 (2) in the presenceof the accused. He held that, as there is no section similar to section 297,covering such evidence, the answer is that it can only be used when itforms part of the trial. Hearne J. then proceeded to consider whetherthe evidence subsequently read over to two of the witnesses formed partof the trial. The charge against the accused included one of rioting,which was not triable by a Magistrate. Four of the accused were presentwhen the evidence of these witnesses was taken. On a subsequent datethe Magistrate assumed jurisdiction as District Judge. In thesecircumstances, Hearne J. held that the proceedings taken as they wereunder section 151 (2) could not be imported into the trial itself andmerely read to the accused. These proceedings did not form part of thesubsequent trial. The decision of Hearne J., that the evidence recordedunder section 15.1 (2) could not be used unless it formed part of the trialbecause it was recorded in the presence of the accused, seems to me to berather artificial. This, however, is not the occasion to consider thecorrectness of that decision as I have satisfied myself that it has nobearing on .the facts of the present case. The report of the PoliceSergeant was made in this case under section 148 (1) (b). The Magistratethen examined the complainant and afterwards issued a warrant. Thisindicates coriclusively~that he acted under section 151 (1), proviso (ii).There can, therefore, be no doubt that this evidence was quite properlyrecorded in the absence of the accused. Hence pri-rna facie section 297becomes applicable in accordance with the decision of Soertsz J., in thecase of Musajer v. Wijeysinghe (supra). It has been contended that thedecision in the latter case has no application inasmuch as the accused,was charged in that case with an offence triable summarily, whereasin this case he was charged with a non-summary offence. As theevidence taken comes within the ambit of section 297, I do not considerthat the two cases can be distinguished on this ground. The provisionsof this section have the effect of making the evidence of the complainant,taken by the Magistrate before he assumed jurisdiction as AdditionalDistrict Judge, together with the evidence subsequently taken, part of oneand the same trial. I can find nothing contrary to this conclusion in thedecision of the Full Court in Thennakone v. Maradumuttu and others Counsel for the appellant has also invited my attention to section 392 (2)of the Criminal Procedure Code which provision has, with regardto the evidence of the complainant taken on January 19, placed on theMagistrate the onus of conducting the prosecution. The fact that the
1 43 N. L. R. 236.* 43 X. L. R. 61.'43 X. L. R. 169.
HOWARD C.J.—Muttukrishna v. Hulugallc.
Magistrate occupied this position must, so it is contended, have pre-judiced the appellant. I agree with the dictum of Nihill J. in Mediwakav. (iunasekera“, that it is difficult to reconcile this provision with theamendments introduced by Ordinance No. 13 of 1938. The mattermerits consideration by the Legislature. If the contention of Counselfor the appellant is correct, the decision of a Magistrate committing anaccused person for trial under section 163 of the Code is open to the sameobjection. In these circumstances, I find myself unable to accept thiscontention. The appeal of the appellant on the ground of law, therefore,fails.
As there was evidence to support the conviction, I am not prepared todisturb the finding of the Magistrate on the facts. Nor do I consider,having regard to the gravity of the offence, that the'sentence errs on theside of severity. The appeals on these grounds also fail.
ABEYSINGHE v. MENIKA