HEARNE J.—Dionis v. Piyoris Appu.
1942Present: Hearne J.
DIONIS et al. v. PIYORIS APPU et al.
761-7—M. C. Tangalla, 14,125.
Criminal Procedure—Non-summary case—Evidence recorded in presence ofthe accused—Accused not permitted to cross-examine—Case triedsummarily—Evidence read over to accused at trial—Fatal irregularity—Criminal Procedure Code, s. 151 (2).
Where, in non-summary proceedings, evidence was recorded undersection 151 (2) of the Criminal Procedure Code in the presence of theaccused who was not permitted to cross-examine the witnesses andwhere the Magistrate thereafter decided to try the case summarily asDistrict Judge—
Held, that the evidence of the witnesses could not be imported into thetrial by merely reading it over to them and that the irregularity wasfatal to the conviction.
^^PPEAL. from a conviction by the Magistrate of Tangalla.
H. V. Perera, K.C. (with him S. R. Wijayatilake), for accused, appellants.H. W. R. Weerasooriya, C.C. (for Crown), respondents.
Cur. adv. vult.
March 23, 1342. Hearne J.—
On June 21, 1941, the Police made a report to the Magistrate undersections 121 (2) and 131 of the Criminal Procedure Code and producedbefore him four of the seven persons whose names were mentioned in thereport-. These four prsons were remanded till June 24, and on thatdate a report under section 148 (b) of the Code was forwarded to theMagistrate. In the presence of the four persons who had been remandedto custody and of the three others who had also been brought to Court,the Magistrate, Mr. Olegesegeram, recorded the evidence of Alice Nonaand K. Gunasena. No opportunity of cross-examination was given
HERNE'J.—Dianis v. Piyoris Appu.
and the evidence of the two witnesses was not read over to them nor didthey sign the record that had been made of what they said. Amongstthe offences alleged in the report was one of rioting which is not triableby a Magistrate but Mr. Olegesegeram assumed jurisdiction as DistrictJudge, charged the seven accused and fixed the date of trial. On August 12,another Magistrate, Mr. Roberts, had succeeded Mr. Olegesegeram.He recorded the evidence of a medical witness but no cross-examinationwas allowed. It would appear that he assumed he was officiating asMagistrate, for at the conclusion of the Doctor’s evidence, he made anote that he had decided to try the case as District Judge. Charges wereread, and explained to the accused, all of whom pleaded not guilty. Thedoctor was recalled and his previous evidence wag read. He was followedby Alice Nona and Gunasena, whose previous evidence was also read.They were cross-examined; three other witnesses were called and thecase for the prosecution was closed. Defence witnesses were then, calledand the accused were eventually convicted on five charges and sentencedto imprisonment.
It was argued on appeal that when the trial was held by Mr. Roberts,proceedings should have been taken de novo and that the evidence ofAlice Nona and Gunasena should not merely have been read to theaccused in the presence of the witnesses.
Much of the argument was forcussed on the subject of the particularsection of the Code under which Mr. Olegesegeram purported to act.Mr. Perera argued that he had acted under section 150 (1), but I aminclined to think he is wrong. Apart from the marginal note “ procedurein certain cases where accused is unknown ” (this is, of course, not partof the law) the section appears to contemplate the absence of any accusedperson before the Magistrate. The words “ although no person by nameis accused of having committed such offence ” mean, in my opinion,u notwithstanding the fact that no person is accused by name ”.
The aim of the Code, as it appears to me, is to deal with various situa-tions in which a Magistrate may find himself and to lay down when heshall, may or need not hold an examination of witnesses.
Disregarding for the moment the unusual occasions referred to in (c),
and (j) of section 148 (1), the Code provides under section 150 (1)for an examination at the Magistrate’s option when no accused is presentor named. The object is to enable the Magistrate to decide whetherprocess should issue under section 150 (3) against any person whosename may emerge in the course of the examination. It also providesunder section 151 proviso (ii.) for a compulsory or an optional examinationwhen the accused, though named, is not in custody and under section151 (2) for a compulsory examination when the accused is present andhas been brought before the Court;
It would appear that Mr. Olegesegeram acted under section 151 (2).
It has been held by this Court that when evidence is properly recordedin the absence of the accused, e.g., under section 151 proviso (ii.) section297 applies—Musafer v. Wijeysinghe What is the position in regard toevidence which has been recorded under section 151 (2) in the pre-sense of the accused ? As there is no section, similar to section 297,
i 43 -V. L. R. 61
WIJEYEWARDENE J.—Sopiya v. Wilbert.
covering such evidence, the answer is that it can only be used whenit forms part of the trial.
It may be that in certain- circumstances the recording of evidenceunder section 151 (2) would properly be regarded as part of the trial.But where the offence charged is one that ordinarily the Magistrate couldnot try, where the evidence taken under section 151 (2) was taken at atime when he had not assumed extended jurisdiction and had not informedthe accused of the charges against them and, finally, when the accusedthough present were not given the opportunity of cross-examination,it is impossible to say that the proceedings under section 151 (2) formedpart of the subsequent trial. This being the case the evidence recordedunder section 151 (2) cannot be imported into the trial itself and merelyread to the accused. To hold that it may be done would be to disregardthe provisions of section 189 which requires a Magistrate, for the purposeof a trial, to act on evidence which he has taken “ in manner hereinafterprovided ”.
It is to be noted that I have arrived at this conclusion independentlyof the fact that the evidence of Alice Nona and Gunasena was not readover to them or signed by them as required by section 151 (b).
The appeal is allowed and a fresh trial is ordered before a Magistrate
other than Mr. Roberts.
DIONIS et al. v. PIYORIS APPU et al