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Present: Jayewardene A.J.
SILVA o. HEYZER.404—P, C. Colombo, 2,650.
Case sent back for rehearing before another Magistrate—Evidence pre-viously recorded not to be taken into consideration—CriminalProcedure Code, ss. 29S and 908 (9).
When a case is sent back for rehearing before another Magistrate,the Magistrate has no right to take into consideration any evidencegiyen at the previous trial, except with the express consent of theaccused or his proctor or advocate.
King v. Dorisamy 1 followed.
De Jong (with him B. C. Fonseka), for accused, appellant.
if. V. Perera, for complainant, respondent.
August 1, 1924. Jayewardene A.J.—
This is an unfortunate dispute between a landlady and her tenant.The accused who is the tenant was prosecuted in the Police Courtfor criminal trespass alleged to have been committed by him byentering his landlady’s premises and assaulting some of the servants,which resulted in annoyance to her. At the first trial before thePolice Magistrate of Colombo, the accused was acquitted. Thelearned Magistrate incorporated some facts obtained from thepolice information book in his judgment of acquittal, and' on theground that this was an admission of irrelevant and inadmissible• evidence, the order of acquittal was set aside and the case was sentback to be reheard by another Magistrate. The case was thereuponheard by the Additional Police Magistrate of Colombo, who haaconvicted the accused and sentenced him to pay a fine of Bs. 25.Prom a sentence to pay a fine of Bs. 25, an appeal to this Courtcould only be maintained on points of law. Two points of law have-been taken before me: (1) That at the second trial no charge was.framed or read out to the accused, and his plea was not taken. Ithink that, when a case is sent back to be reheard before anotherMagistrate, it is the duty of that Magistrate to obtain the plea of theaccused to ascertain whether he pleads guilty or not, for it may bethat in certain cases an accused who has once pleaded not guiltymay on a subsequent occasion be prepared to plead guilty. In thiscase the accused was represented by counsel, and no prejudice haaresulted to him, but there may be cases where the .accused isunrepresented where it may become absolutely essential that the
1 (1914) 17 N. L. R. 246.
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Magistrate should ascertain before he proceeds to hear evidencewherether the ussed pleads guilty or not guilty, but as in this casethe charge had been framed against the accused at the first trial,and he had pleaded not guilty and at the second, trial he was repre-sented by counsel, it is not necessary for me to take a strictly technicalview of the procedure, and I am not, on the.facts of this particularcase, prepared to give effect to the objection; (2) the second objec-tion taken seems to be a more formidable one, that is, that the newMagistrate read over the evidence recorded by the Magistratewhose proceedings had been quashed, and permitted the witnessesto be further examined and cross-examined. It has been pointedout by this Court that where a case is sent for retrial or trial denovo, all. the steps laid down in the Criminal Procedure Code shouldbe followed from the very commencement. In support of thiscontention counsel for the appellant has referred me to the case ofKing v. Dorisamy (supra) where it was held that, where.the proceed-ings were quashed ab initio and the case ordered to be retried, it wasnot enough to get the witnesses to swear to the correctness of theevidence recorded at the first trial and then submit- them for furtherexamination. In the course of his judgment laying down this rule,Pereira J. said:"‘A further objection has been taken, which I
regret I am obliged to uphold. I say I regret, because success ofthe objection will necessitate a further retrial of the case. Theobjection is that the witnesses have not been examined, nor hastheir evidence been recorded as required by. the Criminal Procedure.Code. As each witness was called, the District Judge recorded thatthe evidence given by him on November 12 (that is to say, theevidence in the quashed proceedings) was read over and explainedand sworn to by the witnesses, and that the witness was furtherexamined. This proceedings was in contravention of section 208
and section 298 .of the Criminal Procedure Code, and was thereforegrossly irregular/' and he further added “ even the consent of theaccused's proctor did not validate it.” The position here is exactlythe same, and the only difference being that the case before me isa Police Court case', and the case before Pereira J. was a District•Court case, but the provisions of section 298 which the Judgereferred to applies. to every Court whose proceedings are regulatedby the Criminal Procedure Code. I might also refer to anothercase, the case of Murugasu v. Charles Appvhamy.1 That is not onall fours with the present case, but it lends support to the principlewhich has been laid down in King v. Dorisamy (supra), and which 1am compelled to give effect to in this case. I think that when thecase was sent back for rehearing before another Magistrate, thisMagistrate had no right to take into consideration any evidence^iven at the previous trial except, I would sayf with the express•consent of the accused or his duly authorized proctor or advocate.
1 (1922) 4 C. L, B. 225.
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I would, therefore, set aside the conviction. I am not sorry thatI have to come to this conclusion, because, according to the judg-ment of the learned Magistrate, neither party has come out withthe whole truth, and both parties seem to be responsible for thetrouble that took place on the day in question. In the circumstancesI do not think this miserable dispute should be carried any further.
I set aside the conviction, and I do not think it is necessary totake any further proceedings in this oase.
SILVA v. HEYZER