NAGALINOAM A. J.—The King v. BeyeU Bing ho.
1946Present: Nagalingam A.J.
THE KING v. BEYAL SINGHO et al.
8. C. No. 117 (3rd Western Circuit)—M. C. GhUaw, 25,756.
Witness—Non-summary inquiry—Evidence recorded in absence of abscondingaccused—Competency of the witness to testify at the trial of the accused—Criminal Procedure Code, ss. 297, 407.
The evidence of a witness whose deposition at a non-summary inquirywas recorded in the absence of an absconding accused in terms of section407 of the Criminal Procedure Code need not be recorded de novo butby virtue of section 297 of the Code it would be sufficient if the evidenceso recorded is read over to the accused in the presence of such witnessand the accused permitted a full opportunity of cross-examining suchwitness. Such a witness would be competent to testify against theaccused at the trial.
HIS was a statement of reasons given by the presiding Judge,in a trial before the Supreme Court, for admitting certain evidence
tendered by the prosecution and objected to by the defence.
E. Ghitty, for the sixth accused.
Jayasuriya, C.G., for the Crown.
October 1, 1946. Nagalingam A.J.—
Mr. Chitty for the sixth accused raises a preliminary objection to thecompetency of the witnesses whose evidence was recorded at the non-summary inquiry by the Magistrate in the absence of the sixth accusedto testify against him at the trial. He contends that after the sixthaccused was arrested and produced in Court the learned Magistrateshould have recorded de novo the evidence of all the witnesses who hadbeen examined in the absence of the sixth accused so far as the chargesrelated to him.
Section 297 of the Criminal Procedure Code specifically states thatexcept as otherwise expressly provided all evidence taken at inquiries ortrials shall be taken in the presence of the accused, or when his personalattendance is dispensed with, in the presence of his pleader. The preg-nant words in the section, so far as the objection is concerned, are,“ except as otherwise expressly provided ”. Under section 407 of theCriminal Procedure Code there is express provision that where an accusedhas absconded and there is no immediate prospect of arresting him theCourt may in his absence examine the witnesses produced on behalf of theprosecution and record their depositions. In this case the Magistratehad before him evidence that the 6th accused was absconding and in factthe Magistrate did record a specific finding on the point, so that theevidence was properly recorded in the absence of the sixth accused andtherefore under the proviso to section 297 of the Criminal Procedure Codethe evidence so recorded need only be read over to the accused in thepresence of such witnesses and the accused permitted a full opportunityof cross-examining such witnesses. This has been complied with.
I am therefore of opinion that the witnesses having given their testi-mony against the accused in due form as required by law, they arecompetent to testify in this Court against the accused.
This question is now of purely academic interest as the Jury by theirverdict have acquitted the sixth accused.
THE KING v. BEYAL SINGHO et al