AKBAR J.—Bandaranaike v. Rasanayake.
1933Present: Akbar J.
BANDARANAIKE v. RASANAYAKE et al.
187—188—P. C. Puttalam, 16,989.
Bias—Magistrate forming an opinion outside Court—Entry in InformationBook—Trial before another Magistrate.
A Police Magistrate, who has been informed of the facts of a caseoutside Court and has made an entry in the Information'Book, shouldnot try the case himself.
^^PPEAL from a conviction by the Police Magistrate of Puttalam.
L. A. Rajapakse (with him Athulathmudali), for first accused, appellant.
Sri Nissanka (with him Panditagoonawardena), for respondent.
July 21, 1933. Akbar J.—
The first accused in this case is the Interpreter Mudaliyar of the PoliceMagistrate’s Court and the second accused is the Court Sergeant of thesame Court. They are both charged before this Magistrate with assault-ing a person and they have been found guilty and fined Rs. 50 and Rs. 25,respectively.
A point of law was taken that the Magistrate was prejudiced andshould have given effect to the objection taken by counsel that the accusedshould be tried by some other Magistrate. In spite of the objection hedecided to hear the case because he was of opinion that not to try thecase would have been “ a gross dereliction of duty on his part ”,meaning, I believe, “ dereliction of duty to the Government ”, but thereis another duty that is of a higher sanction, namely, the interestsof justice. It is quite clear from the evidence of the Sub-Inspectorof Police in answer to questions in cross-examination that he informedthe Police Magistrate of the occurrence about 9 a.m. that day and thePolice Magistrate visited the station during the course of the day.What is more the Police Magistrate presumably read the informationbook because he wrote an opinion of the matter in the visitor’s bookand the information book. Counsel who appeared for the accused is tobe commended for not asking what this comment was. Obviously, theMagistrate having looked at the information book must have formedhis opinion which he expressed in the information book and it is not diffi-cult to see that he must have followed this opinion, unconsciously perhaps,in his judgment, or otherwise it means that his opinion first formed wasdifferent to the one that he formed at the end of the trial.
There are several authorities which say that a Magistrate who hasbeen prejudiced in this way should not try the case himself. This is thehigher duty to which I referred above. See the cases Rode v. Bav>al,King v. Podisingho % 1 Thambvah 61 and Peris v. Simanis". As regards
I 1 N. L. 11. 373.2 16 -V. L. R. 16.
2 2 N. L. R. 62.
MACDONELL CJ.—Sub-Inspector of Police, Chilaw v. Croos. 189
the Magistrate's reference to the information book, see the case reportedin Bartholomeusz v. Vein. The Magistrate here did make use of theinformation book but it has not been put in evidence.
The only difficulty I have is whether I should not set aside the wholeconviction and leave it at that or whether I should order a fresh trial ifthe prosecutor wishes to proceed with this case. I think the interests ofjustice require that there should be a re-trial, if the prosecutor wishes topress the charge, and that it should be heard by a new Judge who shouldpreferably be appointed from outside foe district to hear the case.
The conviction and sentence are set aside.
BANDARANAIKE v. RASANAYAKE et al