Fernando v. Silva.
Present: Dalton J.
FERNANDO v. SILVA.
858—P. C. Kalutara, 9,912.
Accused—Trial in Police Court—Evidence by accused—Power of Court torecall accused—Criminal Procedure Code, s. 429.
Where, at a summary trial in the Police Court, the accused givesevidence, the Court has the right to recall him under the powers given toit by section 429 of the Criminal Procedure Code.
DALTON J.—Fernando v. Silva.
^j^PPEAL from a conviction by the Police Magistrate of Kalutara.
Colvin R. de Silva (with him T. S. Fernando), for accused, appellant.
Peter de Silva (with him V. R. de S. Gunasekera), for plaintiff,respondent.
December 18, 1933. Dalton J.—
The appellant has been convicted on a charge of using a pair of bullocksin a double bullock cart when they were unfit to be so used on account oflameness, emaciation, and injuries to their legs. He was sentenced topay a fine of Rs. 40 or in default to two months’ rigorous imprisonment.
The evidence shows that the accused is the employee of a Public Works-Overseer at Nagoda, the latter being the owner of the bulls. There isample evidence that he was using the bulls, as set out in the charge, onthe day in question for the purpose of transporting earth, and the condi-tion of the bulls is deposed to both by the Inspector of the S. P. C. A.at Panadura and the veterinary surgeon who was called. The evidencefor the prosecution, which has been accepted by the Magistrate, amplySupports the charge, and this is not contested on the appeal.
The ground upon which the appeal was argued was that the Magistratewas wrong in recalling the appellant into the witness box after the closeof the appellant’s case. The appellant had given evidence himself insupport of his defence. When his last witness had left the witness box,the Magistrate recalled the appellant. He had stated in his evidence inchief that he had taken the bulls to the working place from the P. W. D.lines, tied at the back of his cart, because there was no one in the lines tolook after and feed them during the day. The Magistrate recalled himand asked him some questions on this matter, and about his hours of work.Counsel argues that the Magistrate is not empowered to recall an accusedperson who has given evidence, although he can recall any other witnessfor re-examination.
Section 429 of the Criminal Procedure Code provides that any Court mayat any stage of a trial summon any person as a witness or examine any personin attendance. That does not include an accused person, whose rights aregoverned by the provisions of section 120 (6) of the Evidence Ordinance,1895, as amended by Ordinance No. 16 of 1925. He may decide that hedoes not wish to give evidence and in that event the Court is not entitledto put him into the witness box. The section then proceeds that the Courtmay recall and re-examine any person already examined. It seems tome that this gives the Court power to recall and re-examine any personwho has already given evidence,which would necessarily include an accusedperson who has given evidence. To give the words “ any personalready examined ” the meaning that counsel gives them, one would haveto insert some such words as these: “ any such person as aforesaid whohas been already ” between “ re-examine ” and “ examined ” in the fourthand fifth lines of the section, but that is not what the section says. If anaccused person has given evidence on his own behalf, he does so with thelike effect and consequence as any other witness, as provided by section120 (6) above quoted, and, in my opinion, the Court has power to recallhim under the powers given to the Court by section 429. I should like to
DALTON J.—Fernando v. Silva.
point out that this power may and should, if necessary, be exercised onbehalf of the accused. It is not difficult to imagine a case, in which anaccused person who is undefended may be recalled in his own interestsby the Court to dear up a point which his evidence has left in doubt.
The case of King v. Thuriappa1 cited in course of the argument is onein which the District Judge called and examined three of the accused,although they were unwilling to go into witness box. The appeal Courtheld that whilst the accused is a competent witness on his own behalfand may call himself as a witness, he cannot be called by anyone elseagainst his will. Moncreiff A.C.J. held, however, that the conduct ofthe trial Judge in this respect was an irregularity, which under thecircumstances of the case, was not sufficient to prejudice the accused intheir defence. He, however, allowed the appeal on other grounds. Thatcase does not assist towards the interpretation of section 429 of the Code,but it would appear to support the proposition that, assuming there hasbeen an irregularity by the Magistrate in respect of his powers of callingwitnesses, a Court of Appeal is entitled to inquire and ascertain, before.giving effect to it, whether the irregularity has prejudicially affected theaccused in their defence.
The case of Inspector of Police v. Nadar8 is certainly one which supportsthe contention of appellant’s counsel, for there de Sampayo J. doesexpress the opinion that under section 429 the Court cannot summon orexamine any person who is an accused. I gather from the circumstancesof the case, although it is not explicitly so stated/that he also held thatthe Court could not recall and re-examine an accused person who hadalready given evidence. I regret I am unable for the reason I have givento come to the same conclusion, so far as regards the power of the Court torecall a person who has been already called and examined. It is to benoted, however, that the procedure adopted by the Magistrate to whichde Sampayo J. took exception would certainly seem to be open toobjection and strong comment, even if it were not contrary to the provi-sions of the Code. The accused there was charged with dishonestlyreceiving stolen property knowing the same to have been stolen. Evidencewas led for the prosecution; the accused then gave evidence in his ownbehalf and called certain witnesses. The proctor for the accused there-upon addressed the Court. After the termination of that address, theMagistrate called the accused into the witness box again and put himthrough a long examination and cross-examination, and thereafterconvicted the accused, largely basing his opinion on the statements elicitedby him when the accused was called a second time. If I may be allowedto express an opinion on the facts disclosed in that case, I would say thatthe procedure adopted by the Magistrate, if not contrary to the exactwords of the Code, was certainly contrary to the spirit of it, and thecircumstances show that there was some doubt as to the accused havinghad a fair trial. The Magistrate would seem to have misused the powergiven him by section 429. de Sampayo J. held, however, as I have stated,that the Magistrate had no power to recall- an accused person whohad given evidence, and he set aside the conviction sending back the casefor trial de novo.
i 8 N. L. it. 70.
2 23 N. L. R. 167.
216 Hantga v. Ocean Accident and Guarantee Corporation, Ltd.
I would hold that the Magistrate had power to recall and re-examinethe appellant, since he was a person who had been already examined atthe trial. Ifr is not suggested that if he had that power, he here madeany misuse of it. The appellant was recalled to dear up two matters towhich he had referred in his evidence, and even if there had been anyirregularity (which I hold there was not), counsel has failed to show thatit in any way prejudicially affected the appellant in his defence.
The appeal must be dismissed and the conviction affirmed.
FERNANDO v. SILVA