AKBAR J.—Fernando v. De Jong.
Present: Akbar J.
FERNANDO v. DE JONG.
179—P. C. Colombo, 36,771.
Appeal—■Complainant not served with notice—Acquittal of accused—NoOrder to prejudice of Complainant—Criminal Procedure Code, s. 345.
The acquittal of an accused person upon an appeal of which thecomplainant has not received notice is not an order to the prejudice ofthe latter within the meaning of section 345 of the Criminal ProcedureCode.
PPEAL from a conviction by the Police Magistrate of Colombo.
E. F. N. Gratiqen, for accused-appellant.
May 30, 1932. Akbar J.—
The only difficulty I had in hearing this appeal was the fact that nonotice of this appeal has been served on the complainant, the Fiscal’sreturn showing that the complaintant had gone to England. I decided,however, to hear the appeal because under secion 345 of the CriminalProcedure Code in a case of this kind where the complainant has notbeen served with notice of the appeal the only limitation is thatI can make no order to the prejudice of the complainant, which Iinterpret as meaning some order by which he has to pay money or bywhich he suffers some damage. Therefore, under this section I thinkI can hear this appeal and an acquittal of the accused would not be anorder to the prejudice of the complainant as contemplated by the section.
The accused was charged with the offence of criminal intimidation onthe night of February 18 this year at 11 p.m. An affidavit has beensubmitted to me which is borne out by what appears on the record,showing that the accused’s counsel, Mr. Weerakoon, who had appearedfor him the day before and had got a postponement of the case to enablehim to bring about a • settlement, at the last minute stated to the Courtthat he withdrew from the case because his client refused to listen tohis advice. I think this was an improper statement to make to theCourt because it can only mean that the accused’s counsel had advisedhim to plead guilty and that he had refused to take his advice ; such astatement would at once prejudice the mind of the Court against theaccused. However that may be, the accused asked for time to retaincounsel, and his affidavit states that he asked for two hours’ time to. retain and instruct another lawyer. His petition of appeal states asfollows : —
“ When my proctors, Messrs. Weerakoon and Georgez, let me downat the last moment, I asked the Magistrate two hours’ time to secureanother counsel, and also stated that I hadn’t a minute’s sleep nor amorsel of food since the night, previous, and this was denied me.”
It was in my opinion a very reasonable request because theMagistrate must have seen for himself that Mr. Weerakoon had thrown
AKBAR J.—Fernando v. De Jong.
■ up his brief at the last moment in a criminal case. The postponementwas refused by the Magistrate who made order as follows : —
“The case was fixed for 11 a.m. to-day and moreover witnessesare present.”
In a criminal case it is not so much the convenience of witnesses thatshould be kept in mind as the prejudice to the accused because everyaccused must be presumed to be innocent until the charge is proved.If the statement made in the petition of appeal is correct, namely,that he mentioned to the Court that he had not a minute’s sleep nor amorsel of food since the night previous, it must have been obviousto the Magistrate that the accused was distraught at the momentand that it was not reasonable to ask him to conduct his own defence.That this was what happened is proved from the record. The accusedhas put questions which appear to be outside the issues involved inthe case and which show that he must have been very much put outat the turn which the case had taken. I need not specify the veryirrelevant sometimes foolish, questions, which the accused put towitnesses apparently because he had not full control of himself at the time.
When the case for the prosecution was closed section 296 of the CriminalProcedure Code is specific, namely, that when the Court calls upon anaccused for his defence, if he is not represented by counsel, it is the dutyof the Court to inform him of his right to give evidence on his own behalfand if he wishes to give evidence on his own behalf it is the duty of theCourt to call his attention to the principal points in the evidence for theprosecution which tell against him in order that he may have anopportunity of explaining them. The affidavit submitted by the accusedshows that this was riot done by the Court and that is corroborated bythe record because it is a rule of this Court that such a course if takenby the Court must be indicated on the record. The record is silent onthe point and, therefore, I must presume that the Magistrate has notcarried out the imperative provisions of section 296 of the CriminalProcedure Code. So that the accused not knowing the specific pointsagainst him and having nobody to advise him on the law has, if I maysay so, contributed to a waste of the Court’s time by calling evidencehaphazard and irrelevant, which time might have been saved if theMagistrate had given him the two hours postponement. He calledten witnesses t besides giving evidence himself. The Court Inspectorwas suddenly pounced upon by him and put into the witness-box. Anundertaker has given evidence, his chauffeur has given evidence, andeven the wife of the complainant and the brother of the complainantwere called.
It is quite apparent to me from the record that the accused was in ahighly tense state of feeling at the time judging-from the questions putby him and the evidence given by him. In one place he says : “ I hopethat my mines have brought me colossal fortune by the help of theAlmighty.” The learned Magistrate in his judgment states that thecase for the prosecution is proved by the evidence of these randomwitnesses whom the accused himself put into the witness-box, namely,Inspector South, who testified to the fear which the accused had causedin. the complainant just before the trial. The learned Magistrate
DALTON J.—Letchiman Chetty v. Samitchi.
has forgotten that the charge was not in regard to what took place inthe Police Court before the trial, but in regard to what took place onthe night' [of February 18. Further, the learned Magistrate says asfollows : —
“ In addition accused in Court to-day said to the complainant;
* If you had come hear me you would not have been alive to-day. ’ ”
The learned Magistrate regards this as an inevitable confession ofguilt showing the guilt of the accused on the night in question I donot think this is a fair test because, to take an extreme case, the accused’smind may have been unhinged by the mere fact that he was chargedin Court and yet the charge may be false or exaggerated.
I think I have stated enough to prove that the accused should be givenanother chance to prove his defence with the aid of competent lawyers,who will know how to put their questions and call the proper witnesses.
I do not think the complainant will be prejudiced by the order I amgoing to make, namely, that the conviction and sentence be setaside and the case sent back for a retrial before another Magistrate ifthe complainant at any time within the prescriptive period providedby the Criminal Procedure Code decides to proceed with the charge.
FERNANDO v. DE JONG