DIAS J.—The King v. Aron Appuhainy
[ Assize Coubt ]
1949Present: Dias J.
THE KING r. ARON APPUHAMY et al
S. C. 51—M. C. Negombo, 58,395
Amendment of indictment—Adding :xvne of new u-itness discovered aftercommittal but before trial—Criminal Procedure Code (Cap. 16), sections 1G1,172.
The Magistrate committed the accused for trial without examining a materialwitness whose whoroabouts could not be traced. After tho indictment wassigned, but before tho trial, the missing witnoss was discovered. Tho Attorney-< >enaral gave notice both to the accused and their legal advisors that ho intendedto move the Court of trial to amend tho indictment by adding the namo of thonew witness. Tho dofoneo was also supplied with a precis of the ovidencewhich the witness was expected to give.
Held, that in spite of the repeal of section 101 of the Criminal ProcedureCode by Ordinance No. 13 of 1038, the Court of trial had a discretion to allowthe indictment to be amonded under section 172 of tho Criminal ProcedureCode and to allow such witness to be called, provided no prejudice was therebycaused to the accusod.
As a rule, on amendment of a charge or indictment should be allowed if itwould have tho effoct of convicting the guilty ur securing tho acquittal of tbeinnocont; but it should not bo allowed if it would cause substantial injusticeor prejudice to the accused.
Order made in the course of a trial befure a Judge and Jury inthe Western Circuit.
A. A. Jtojasingkam, Crown Counsel, for tho Attorney-General.
Jan di Zoysa, for the accusod.
December 15, 1949. Dias J.—
Under the Criminal Procedure Code, before it was amended byOrdinance No. 13 of 1938, section 161 provided for the situation whichhas arisen in the present case. Under the repealed section 101 it was' Till. Vol. 3, Pt. If, p. 295.
DIAS J.—The King v. Aron Appuhnmy
provided that when evidence was discovered after committal, but beforetrial, it was open to the Magistrate to summon such witnesses, and it wasalso open to the Attorney-General to add the names of tho new witnessesto the back of the indictment, provided a copy of the amended indictmentwas served on the accused. When the Magistrate recorded the freshevidence it was not necessary for the accused to be present, but notice ofsuch examination had to be given to the accused. Section 161, however,has now been repealed ; and it has not been reproduced in the amendedChapter XVI of the Criminal Procedure Code.
Therefore, the only provisions of the law which could govern this caseare the group of sections 172 to 176 relating to amendments of chargesand indictments.
I take it that the addition of the name of a new witness to the back ofthe indictment amounts to “ an alteration ” of the indictment. Thepower to amend a charge or indictment during trial is vested in theCourt alone—Rex v. Singko Appu1. The Court may act either, ex meromotu, or upon an application made by either side. When an applicationfor an amendment is made, it is the duty of the Court to consider themerits of the application at once. It is irregular for the Court toadjourn the matter—Rex v. VajiramAs a rule, an amendment shouldbe allowed if it would have the effect of convicting the guilty orsecuring the acquittal of the innocent ; but an application to amendshould not be allowed if it would cause substantial injustice or prejudiceto the accused.
The question, therefore, which I must now decide is whether in allowingthis application, any substantial injustice or prejudice will be caused tothe accused. No prej udice con possibly be caused to anybody by allowingthe truth to be made manifest. Therefore, if there is a witness whoshould have been called in tho Magistrate’s Court but who, owing to hisabsence, could not be so examined, it cannot cause injustice to the accused,provided they have every opportunity of testing the evidence of thewitness by cross-examination on oath. It is admitted that tho Crown hasgiven notice to the learned defending counsel of its intention to call thisevidence at the trial; and Crown Counsel informs me that the gist of theevidence which that witness is going to give has been supplied to each oftho accused in this case. Therefore, one must presume that the proctorfor the defence and loarned counsel Mr. Ian de Zoysa ore both aware ofthe nature of tho evidence the witness is expected to give, I understandthat the defence have had about a month in winch to make enquiries soas to be ready to cross-examine the witness. In the circumstances,therefore, although with some reluctance, I allow the application. Itrust that applications of this kind will be more the exception than therule. The desirability of amending the Criminal Procedure Code to bringinto operation a section similar to the repealed section 161 is of courseobvious and, no doubt, will not escape the attention of those responsible.
(1SSS) 7 B. C. C. SI
Applicatioti to amend indictment allowed.* 1G Bombay 4li.
THE KING v. ARON APPUHAMY et al