Attorney-General v. Amaradasa
1958 Present : H. N. G. Fernando, J., and T. S. Fernando, J.THE ATTORNEY-GENERAL, Appellant, and, K. A. AMARADASAand 12 others, Respondents
8. G. 23—D. 0. (Criminal) Matara, 241
Postponement—Emergency proclaimed under Public Security Ordinance, No. 25 of1947—Judicial notice thereof—Criminal Procedure Code, es. 194, 201, 208, 289 (1).
x ; In a ease taken up for trial in a District Court on June 5, 1958, during theexistence of the state of emergency which was proclaimed on May 27, 1958,under the Public Security Ordinance, eighteen out of the twenty prosecutionwitnesses were not present. The Court, after recording that Crown Counseland most of the prosecution witnesses were absent, made order “ acquittingand discharging” the accused.
Held, that the Court should have taken judicial notice of the Proclamationand postponed the trial in view of the disturbed conditions prevailing at thetime.
-A.PPEAL from an order of the District Court, Matara.
Ananda Pereira, Crown Counsel, for the Attorney-General.
No appearance for the accused-respondents.
Cur. adv. wit.
T. S. FERNANDO, J.—Attorney-General v. AmaradasS295±
November 24,1958. T. S- Fbbnando, J.—
The Attorney-General appeals against an order made by the DistrictJudge of Matara acquitting 13 persons who had been indicted on a numberof charges of unlawful assembly, house-breaking, theft and mischief. –
Upon the. receipt of the indictment in the District Court the case wasfixed for trial on 30th April, 1958, and on that day Crown Counsel appearedfor the Crown, but as some of the witnesses for the prosecution had not vbeen served with summons the trial was refixed for 5th and 6th June,1958.
When the case was called in court on 5th June, 1958, all the accusedwere present, but of the 20 prosecution witnesses listed on the back of theindictment only 2 were present, one of them being the Village Headman.Of the witnesses absent 9 were Tamils and 8 were either Police or Fiscal’sofficers. There was no appearance of any pleader for the Crown. Theindictment was read and explained to the accused, presumably in com-pliance with section 204 of the Criminal Procedure Code, and each ofthem pleaded not guilty. Section 206 requires the Judge to try theaccused thereafter, but the learned District Judge after recording that- -Crown Counsel and most of the prosecution witnesses were absent made .order “ acquitting and discharging ” the accused.
On the 27th May, 1958, His Excellency the Governor-General, actingunder powers vested in him by the Public Security Ordinance, No. 25of 1947, and declaring that he is of opinion that by reason of the existence .of a state of public emergency in Ceylon, it is expedient so to do in theinterests of public security, the preservation of public order and.themaintenance of supplies and services essential to the life of the commu-nity, had by a Proclamation of that day brought into operation Part-ITof the said Ordinance. The Court was bound to take judicial notice, ofthis Proclamation and could not possibly have been unaware of the exis-tence of the state of public emergency. That travel and communications ,had been disrupted and that persons belonging to particular races wereafraid at this time to travel in areas in which they were in a numericalminority were notorious facts. The record contains a telegram sent on *4th June, 1958, to the District Court by Crown Counsel who had beendirected by the Attorney-General to-conduct the prosecution that he ;was unable to travel from Colombo owing to the disturbed conditions :prevailing at the time which made it unsafe to travel and requestingthat , the case be postponed. It would appear that this telegram wasreceived in the District Court only on 6th June, 1958, a circumstance’indicative by itself of the dislocation of normal communicationsin theareas affected.
Section 201 of the Code requires the prosecution of a criminal trialbefore a District Court to be conducted by the Attorney-General or theSolicitor-General or a Crown Counsel or by some pleader authorised by theAttorney-General. It has long been recognised in our Courts that in thisway the prosecution of criminal trials in the District Court is under the-direct supervision of the Attorney-General. In this very case on the '•earlier date .that had been fixed for trial Crown Counsel appeared.
T. S. FERNANDO, J.—Attorney-General v. Amaradasa
On 5th June, 1958, upon the plea of not guilty being entered, the trialcould have commenced only by the prosecuting counsel stating his caseto the Court—vide section 208. In the absence of the prosecutingcounsel the trial could not therefore have commenced. For this reasonit has been argued by Crown Counsel that it was not open to the DistinctJudge to order an acquittal of the accused. It has been submitted thatthe only provision contained in the Code for an acquittal without a trialis section 194 relating to proceedings in a Magistrate’s Court where onaccount of the absence of a private individual-complainant the Magistrateis required to acquit the accused unless he thinks it proper to adjournthe hearing. Even where an acquittal is so made, tire law provides forits cancellation if the complainant appears before the Magistrate within areasonable time and satisfies him that the absence was due to some causeover which he had no control.
Without entering upon a consideration of the question whether aDistrict Court cannot in any circumstances make an order of acquittalwhere the Crown is not represented at the trial, it is in my opinion suffi-cient in the circumstances of the case before us to consider whether theDistrict Judge should acting under section 289(1) of the Code have post-poned the commencement of the trial. Section 289(1) enacts that iffrom the absence of a witness or any other reasonable cause it becomesnecessary or advisable to postpone the commencement of or adjourn anyinquiry or trial, the Court may from time to time order a postponementor adjournment on such terms as it thinks fit for such time as it considersreasonable. I have already stated that the District Judge should havebeen aware of the public emergency and of the disruption of the normallife of the community. In the district in which the learned judge hasjurisdiction it is a well recognised fact that Tamils are in a minority.It would appear that the judge through inadvertence failed to addresshis mind to the question of a postponement of the trial. Had he soaddressed his mind, I have no doubt tbatthe mostunusual circumstanceof the absence of practically all the prosecution witnesses would inevi-tably have led the judge to make an order of postponement. Thecharges against the accused were of a very serious nature. The allegationagainst them was that in June, 1956—nearly two years before the date oftrial—they had formed themselves into an unlawful assembly and hadlooted and damaged two shops belonging to certain Tamils—offences,ironically enough, of precisely the same kind as those allegedly prevalentin May and June, 1958. When the learned Judge became aware that 18out of 20 witnesses for the Crown were absent, he would in my opinionhave appreciated, had he addressed his mind to the question, that evenif Crown Counsel had been present the latter would have had to move inthe circumstances for a postponement of the trial to ensure the attendanceof his witnesses, a motion which the learned judge would undoubtedlyhave granted.
For the reasons set out above, the order of acquittal has to be quashed.The case is remitted to the District Court for early trial.
H. N. G. Fernando, J.—I agree.
THE ATTORNEYGENERAL, Appellant, and K. A. AMARADASA and others, Respondents