Herath v. Jabbar.
1940Soertsz, Hearne and Kenneman JJ.
HERATH v. JABBAR.479-479e,—M. C. Kandy, 62200.
Criminal Procedure—Evidence improperly recorded in absence of accused—■Necessity for calling witnesses afresh—Illegality—Criminal ProcedureCode, s. 297 (Cap. 16).
Where evidence is improperly recorded against an accused in hisabsence, there is no compliance with the law in reading over the evidenceto him. The witnesses should be required to give their evidence de novoin his presence.
The use against an accused person at his trial of evidence improperlyrecorded against him is an illegality, which vitiates his conviction.
rp HIS was a case referred to a Bench of three Judges by Hearne J.
The facts are stated in the reference as follows: —
This is an appeal by the first and second accused in case No. 62,200 ofthe Magistrate’s Court of Kandy.
On May 30, 1939, the police instituted criminal proceedings againstboth the accused under section 148 (b) of the Criminal Procedure Codeand, on that day, the Magistrate recorded in the presence of the secondaccused alone the evidence of one Kulugammana and one Jayawardene.The second accused was charged from the charge sheet and the Magistrateordered a warrant to issue against first accused. He stated he wastrying the case as Additional District Judge. On June 14 (the firstaccused not having been arrested), the Magistrate, in his absence and inthe presence of the second accused, recorded the evidence of four otherwitnesses—Piyadasa, Ramen, Ratnasekere and Cornelis. On July 4,both the accused were present, Kulugammana was recalled, his previousevidence was read over, additional questions were asked, and he wascross-examined by Counsel for both the accused. The same procedurewas adopted in the • case of Jayawardene, Piyadasa, Ramen, Ratna-sekere and Cornelis. Further witnesses were also called, the accusedentered on their defence, and were eventually convicted.
It should be noted that the first accused was not treated as havingabsconded, there was no evidence before the Court to the effect thatthere was no immediate prospect of arresting him, and the evidence takenon June 14 was not taken under the provisions of section 407 of theCriminal Procedure Code. The question referred was whether thewitnesses who gave their evidence on June 14, in the absence of the firstaccused, should have given their evidence in his presence, de novo onJuly 4.
A. Rajapakse (with him H. A. Wijemanne and Jayamanne), for firstaccused, appellant.—This is a case where the accused were tried summa-rily under Chapter 18 of the Criminal Procedure Code. The generalrule is that all the evidence at the trial must be taken in the presence ofthe accused: see sections 189 and 297 of the Criminal Procedure Code,Parupathen v. Kandiah1 and Lawrence v. The KingThis rule is intended
Herath v. Jabbar.
to prevent false evidence being given which the accuser may be reluctantto give in the presence of an accused, though he may be prepared to giveit in the accused’s absence. Also, to enable an accused to watch thedemeanour of an accuser when he makes his accusations: AttorneyGeneral, N. S. W. v. Bertrand *, Queen v. Bishonathpal
There are exceptions to this rule : — (1) Where an accused is absconding(not merely absent), depositions may be taken under section 407 of theCode. These may be read in evidence under sections 32 and 33 of theEvidence Ordinance ; (2) A deposition of a medical officer or the reportof a Government Analyst under section 406 of the Code ; (3) Commis-sions for recording a witness’ evidence under sections 401 and 402 ofthe Code ; (4) Evidence taken prior to the issue of process under section151 (ii.) or under section 150 where the accused is unknown ; and (5)In certain statutory offences like the Motor Ordinance or the PaperCurrency Ordinance. In certain minor offences the Magistrate maydispense with the personal attendance of the accused; in such casesthe evidence must be recorded in the presence of his pleader : see sec-tion 154 of the Code. Apart from these exceptional cases, the generalrule is that all the evidence must be taken in the presence of the accused.Thus, under section 358 of the old Criminal Procedure Code, No. 3 of 1883,as well as under section 353 of the Indian Criminal Procedure Code, whichare both similar to our present section 297 of the Code without theproviso, the evidence recorded prior to the issue of process could not beread, and those witnesses submitted for cross-examination. The wit-nesses had to give that evidence by word of mouth and afresh, in thepresence of the accused : see 2 Chitterly and Rao (2nd edition) pages1861-1862. Similarly in the English law, the entire body of evidencemust be led in the presence of the accused upon his trial: see 9 Hailsham,pages 104-106 et seq.
Apparently with a view to expediting the. work in summary trialsthe law .was amended enabling the Magistrate to read the evidence givenby witnesses prior to the issue of process, provided such witnesses weretendered for cross-examination by the accused. This was the provisoadded to section 297 by the Ordinance No. 22 of 1890.
This view is strengthened because under the revised legislative enact-ments the words “ when the magistrate proceeds to try the accused heshall read over to him the evidence if any recorded prior to the issue ofprocess ” have been omitted from section 189. The reason is that theproviso to section 297 provides for it. Moreover the proviso in section297 refers to evidence that has been legitimately recorded. It cannotrefer to evidence that cannot be legitimately recorded. A proviso doesnot introduce new matter. It qualifies the substantive words in theenactment.
Mudiyanse v. Appuhamy “ took a contrary view. It is a single-judgedecision and it is submitted that it is wrong. Under our Code, therefore,
1 30 N. L. R. at p. 141.3 4 Moors Privy Council Cases p. 460.
* 13 Law Recorder at p. 115.*12 South W. R. (Cr.) p. 3.
5 22 N. L. R. p. 169.
Herath v. Jabbar.
evidence supportive of the plaint, led before process issued may be readout, but all other evidence (except the exceptions) must be given orallyin the presence of the accused.
This is not an irregularity curable by section 425 of the Code. It is anillegality and is fatal to the conviction: see Police Vidane, Kandana v.Amaris Appu 2 Chitterly and Rao (2nd edition), page 1862.
R. R. Crossette-Thambiah, C.C., for complainant, respondent.—Thereference reads : —“ The evidence of these witnesses could not havebeen recorded in the absence of the accused unless one of the exceptionsapplies and the facts do not fall within any exception of the Code ofwhich I am aware or which has been brought to my notice ”.
The evidence of these witnesses could have been recorded in the absenceof the first accused under section 188 of the Code. In doing so theMagistrate exercised a wise discretion. He had before him two accusedjointly charged with the same offences. There was no suggestion thatthere would be much delay in securing the attendance of the first accused.Therefore, acting under section 188, the Magistrate recorded some of theevidence in the presence of one accused and gave a short date for the trialof the case. By doing so he avoided the waste of time which wouldhave resulted from two sets of cross-examination and caused no realprejudice to the first accused.
[Keuneman J.—But the evidence was not recorded as against the firstaccused.]
It was evidence duly recorded in the case. That is the only pointtaken in the reference.
[Hearne J.—I meant to say “ as against the first accused ”. I wasthere meeting a point raised by Crown Counsel.]
In that case it will be necessary to consider the true scope of section297. The Code of 1883 was amended by Ordinance No. 22 of 1890. Thethen Attorney-General in moving the first reading of that Ordinancestated that the object was “ to simplify the procedure in summary casesand expedite the trial of accused persons ”. See Ceylon Hansard (1890to 1896), page 7. Referring to section 12 of the Ordinance, which is thepresent section 297, the Attorney-General said “ The evidence of witnesseswho had been examined during the absence of an accused will not betaken de novo when the accused is present or is brought up under arrest,but such evidence will be read over to the witnesses in the presence ofthe accused and he will be given the opportunity to cross-examine ”. Thisevidence was duly recorded in the absence of the first accused. Section297 is imperative and requires that “ such evidence shall be read overto the accused ”. Sections though framed as provisos upon precedingsections may contain matter which is in substance a fresh enactment.See Craies on Statute Law, 1923 ed., p. 195. In two local cases where theMagistrate had acted in a manner which was grossly irregular it was heldthat section 297 did not apply. In Police Vidane, Kandana v. AmarisAppu (supra) the Magistrate ordered the accused out of Court when it wasintimated to him that the accused intended to give evidence. Whenthe accused came back into Court to give evidence the Magistrate refusedto allow the evidence taken against him in his absence to be read on the
' 25 N. L. P. 400.
HEARNE J.—Herath v. Jabbar.
ground that section 297 of the Code did not require him to do so in thecircumstances of the case. Bertram C.J. rightly characterized such anerror as fatal. In Cornells v. Uluwitike U was charged before Mr. M,Magistrate of Galle. Mr. M recorded certain evidence and decidedthat no charge lay against U. Subsequently one R was tried by anotherMagistrate and the witnesses who had been heard before Mr. M on thecharge against U were called as witnesses for the prosecution on thecharge against R, and the Magistrate read out to the witnesses theevidence given by them on the previous charge against U and thenexamined them further. Bonser C.J. held that such procedure was notjustified by section 297 but that even such an irregularity was not suchas to amount to an illegality as the accused had not been prejudicedin any way. In the present case the Magistrate acted in no suchunreasonable manner.
Cur. adv. milt.
March 7, 1940. Hearne J.—
In this case which has been referred to us the Magistrate took cogni-zance on May 30, 1939, of criminal proceedings* against two namedaccused persons on a report made to him under section 148 (b) of theCriminal Procedure Code. The second accused was before the Courtand, after recording certain evidence in his presence, he directed a warrantto issue against the first accused-appellant.
A fortnight later, on June 14, he recorded further evidence, whichaffected the first accused, in his absence but in the presence of the secondaccused. It could not be argued that this evidence, in so far as it affectedthe first accused, could have been recorded in his absence by virtue of anyof the exceptions to the general rule that “ all evidence taken at inquiriesand trials shall be taken in the presence of the accused ”. In particularthe exception referred to in section 151 has no application. That sectionpermits the examination on oath of a complainant or any other personwho can speak to the facts of the complaint to enable a Magistrate todecide whether process should issue against an accused person who isnot in custody. In this case, however, a warrant had already beenissued on May 30. It is to be noted that the first accused was not re-garded as having absconded. In that event different considerationswould apply (section 407).
Counsel for the Crown did not, in fact, seek to bring the facts of thecase within section 151. It was tentatively submitted by him that theevidence recorded on June 14, might properly have been recorded againstthe first accused under the provisions contained in the last paragraphof section 188, but as .this section unambiguously refers to an accusedwho is present the argument was abandoned.
The question of law which has been referred to us is, in effect, whetherthe witnesses, whose depositions were taken on June 14, in the circum-stances I have mentioned, should have given their evidence de novo inthe presence of the first accused after his arrest, or whether the readingof the recorded depositions in the presence of the witnesses td the accusedwith the opportunity given to him of cross-examining them is a sufficientcompliance with the law ?
1 J *T. L. R. 248.
MOSELEY J.—Per era v. Nadar.
The answer is to be found in the provisions of section 297. The sectionlays down in the first paragraph that “ all evidence taken at inquiries ortrials shall be taken in the presence of the accused” unless his personalattendance has been dispensed with or unless one of the specific exceptionsof the Code is applicable : and in the second paragraph, that in the lattercase “ the evidence ” of which the accused would otherwise have nonotice “ shall be read over to him”.
The second paragraph of section 297 clearly refers to evidence whichhas been properly recorded against an accused in his absence. Theevidence to which I have referred was improperly recorded as againsthim in his absence and there was, therefore, no compliance with the lawin merely reading it to him. The witnesses should have been requiredto give their evidence afresh in his presence.
In my view the use made at a trial of an accused person of evidenceimproperly recorded against him is an illegality and a conviction foundedupon such evidence cannot be sustained.
I would allow the appeal and remit the case for trial of the appellantbefore another Magistrate.
Soertsz J.—I agree.
Keuneman J.—I agree.
HERATH v. JABBAR