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Present; Schneider J.
FABQUHABSON v. PITCHEY.
242—P. C. Colombo, 21,718.
L«aee to appeal on facts—When to be granted by Magistrate.
A Magistrate is not to grant leave to appeal on facts whereno appeal lies on facts, unless he has Borne doubt.
Amaraaekere, for appellant.
May 81, 1922. Schneider J.—
It is made a matter of complaint on this appeal that the accusedhad not been given an opportunity of calling witnesses to provehis defence, that he had been taken into custody by the policeabout 8 a.m. and tried by 11 a.m., so that hd had no opportunityof engaging the services of a lawyer. There is a record by theMagistrate- that the accused, after he had given evidence, said thatthe tindal would give evidence on his. behalf. I think, the accusedhaving been undefended, it was the duty of the Court to haveexpressly questioned him as to the fact whether he was preparedto go to trial, and whether he desired to call any evidence for thedefence. The record does not show that the Magistrate hadnot given the accused an opportunity of calling witnesses. Takingthe allegations made in the petition of appeal, and the fact thatthe accused was put on his trial very shortly after he had beentaken, into custody by the police, I would set aside the convictionpro formd, and remit the record,, in order that the accused maycall any evidence he desires to call to prove his defence.
I wish to add one word of comment upon the proceedings in thiscase. The accused having been sentenced to undergo imprisonmentfor one month had no right of appeal, except upon a matter of lawor with the leave of the Magistrate. There is no matter of lawwhich seems to arise upon these proceedings, but the appeal wastaken with the leave of the Magistrate. Now there is nothing outhe record to show why the. Magistrate granted this leave. It isnot a mere matter of routine the granting of leave, hut there mustbe some reason moving the Magistrate in granting it. His ownjudgment contains no indication whatever of any doubt in hismind as to the facts which he considered had been proved. If hehad no such doubt, then I fail to see what reason it was that inducedhim to grant leave to appeal. I make these remarks because itseems to me that Magistrate in granting leave to appeal shouldproceed upon some principle.
FARQUHARSON v. PITCHEY