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FERNANDO v. TAMBY SINNO.
P. C., Chilaw, 12,011.
Security to keep the peace—Order to show cause—Criminal ProcedureCode, ss. 92 and 97.
When a person appears under an order from a Magistrate to showcause why he should not be ordered to execute a bond for keepingthe peace, the Magistrate should proceed to incjuire into the truthof the information upon which he has acted and to take such furtherevidence as may appear necessary. This inquiry must be conductedas if it were a summary trial in the Police Court.
T1 ''HE accused appeared before the Magistrate on an order from-L him to show cause why the accused should not be boundover to keep the peace for six months for threatening to shootthe complainant. On the day of his appearance the Magistrate
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did not call the complainant and his witnesses to give evidence,nor did he give the accused an opportunity of cross-examiningthem, but called upon the accused to show cause as required, andultimately made the order absolute.
The accused appealed.
Jayawardene, for appellant, contended that an order passedby a Magistrate requiring a person to “ show cause” why he shouldnot be ordered to furnish security for keeping the peace is not inthe nature of a rule nisi, implying that the burden of provinginnocence is upon such person. The accused has not been given anopportunity of cross-examination, and the proceedings were there-fore irregular. He cited 1 I. L. R. 9 All. 452, and 1 I. L. R. 23Calc. 493.
De Vos, for respondent.—The accused has taken the burden onhimself, and the record does not show that the accused insisted onhis right of cross-examination.
4th October, 1897. Lawrie, A.C.J.—
I set aside the order to find security to keep the peace and tobe of good behaviour for six months, and to come up when calledupon to receive sentence.
For the latter part of the order there seems no foundation.The respondent had not been convicted.
The procedure was irregular, for it is enacted by section 97that when an order is made under section 92 and the respondentappears, the Magistrate shall proceed to inquire into the truth ofthe information upon which he has acted, and to take such furtherevidence as may appear necessary.
This inquiry must be conducted as if it were a summary trialin the Police Court. This was not done. On the merits I am ofthe opinion that the respondent succeeded in showing cause whythe order should not be made. •
FERNANDO v. TAMBY SINNO