!NA-GrAX»HsTG-AM A.O.J.—Fema/ndo v. S. I. Police, TVeliJcade
1953Present: Nagalingam A.C.J.FERNANDO, Appellant, and S. I. POLICE, WELIKADE,
S. G. 567—M. C. Colombo, 24,457
Criminal Procedure Code—Sections 297 and 407—Accused absconding—Evidenceof witnesses recorded in his absence—Procedure for reading it over at the trial.
Where an accused person absconds and evidence is recorded in his absenceunder section 407 of the Criminal Procedure Code, the evidence so recordedmay be read over to the deponents at the trial of the accused. Section 407must be read in conjunction with section 297.
Jane Sinno v. Patnapura Police (1949) 39 C. L. W. 79, not followed.
j/.PPEAL from a judgment of the Magistrate’s Court, Colombo.
G. E. Chitty, with V. Wijetunge, for the accused appellant.
J.G. T. Weeraratne, Crown Counsel, for the Attorney-General.
Cur. adv. milt.
September 28, 1953. Nagalingam A.C.J.—
The point taken on this appeal is that the conviction is vitiated byreason of the fact that the learned Magistrate took into considerationevidence which cannot be said to have been legally before him. Thecontention advanced arises in this wise : The accused was abscondingand the Magistrate examined witnesses and recorded their depositionsas provided by section 407 of the Criminal Procedure Code. At the-trial the evidence so recorded was read over to the witnesses, they werefurther examined in chief and tendered for cross-examination and werein fact cross-examined by counsel for the accused. '
Mr. Chitty argues that the reading over of the evidence of the witnessesrecorded under section 407 is a fatal error as those depositions could onlyhave been placed before Court if it were shown that “ the deponent is-dead or incapable of giving evidence or his attendance cannot be pro-cured without an amount of delay, expense or inconvenience whichunder tlje circumstances of the case would be unreasonable ”, in termsof the second part of section 407. It has been urged that none of theseconditions precedent to the reception of such evidence has been shown toexist and that in fact the contrary is established by reason of the presenceof everyone of the witnesses at the trial.
NAGALINGAM A.C.J.—Fernando v. S. I. Police, Welikade
In support of this contention Mr. Chitty relied upon the judgmentof Basnayake J. in Jane Sinno v. Batnapwra Police1. That case, nodoubt, supports the contention of Counsel but I do not think that thatjudgment concludes the matter. In that case another relevant provisionof the Criminal Procedure Code does not appear to have been broughtto the not;ce of the learned Judge either by Counsel for the appellant orby Crown Counsel who appeared for the respondent. Section 407 cannotbe divorced from the other provisions of the Code. Section 297 of theCode hat a very material bearing on the question. The proviso to section297 enacts that where “ the evidence of any witness shall have beentaken in the absence of the accused whose attendance has not beendispensed with, such evidence shall be read to the accused in the presenceof such witness and the accused shall have a full opportunity allowedhim of cross-examining such witness thereof ” and embodies a rule layingdown a general principle of legal admissibility of evidence recorded inthe absence of an accused person. In this case it is clear that theattendance of the accused person had not been dispensed with at thetime the evidence was recorded under section 407, so that if the provisois applicable it would be perfectly regular for the evidence of thosewitnesses whore evidence had been taken in the absence of the accusedto be read over to the accused in the presence of such witnesses and theaccused afforded an opportunity of cross-examining them.
Mr. Chitty, however, contends that the proviso to section 297 can haveapplication only where it is shown that the conditions prescribed bysection 407 do exist. I think this is wholly erroneous and untenable ;for if the deponent were dead, to take only one of the conditions, thenunder the proviso to section 297 you cannot read out the deposition inthe presence of the witness nor give the accused person an opportunityof cross-examining the witness ; so that Mr. Chitty’s argument mustlogically mean that section 297 can have no application where evidencehas been recorded under section 407. To my mind it is clear that whensection 407 says in the second part of it that the deposition recordedduring the absence of the accused person may be given in evidenceagainst him if uhe deponent is dead, it merely means that that depositionmay be read in evidence without the observance of the ordinary rule thatevidence should be given in the presence of the accused person and thatthe accused person should be provided an opportunity of cross-examiningthe witnesses. This provision enunciates a rule analogous to thatunderlying section 32 of the Evidence Ordinance.
In my view section 297 cannot be excluded from operation in caseswhere evidence has been recorded under section 407. The procedureadopted by the learned Magistrate is therefore unexceptionable, end theconviction is therefore founded on evidence which was properly before-the Court.'
The appeal is dismissed.
1 (1949) 39 G. L. W. 79.
D. FERNANDO, Appellant, and S.I POLICE , WELIKADE, Respondent