091-NLR-NLR-V-48-ARON-SINGHO-Appellant-and-BUULTJENS-S.-I.-POLICE-Respondent.pdf
DIAS J.—Aron Singho v. Buultjens.
285
1947Present: Dias 3.
ARON SINGHO, Appellant and BUULTJENS (S. I. Police),
Respondent.
394—M. C. Colombo, 24,432.
Criminal Procedure—Inspection by Court—Of place where offence committed—
Proper procedure to be followed—Courts Ordinance, s. 53.
A Court is entitled to inspect the scene of an alleged offence in order toarrive at a better understanding of the offence. The inspection must,however, be carried out with great care, and should not be made • theoccasion for the taking of fresh evidence. If anything is said or donewhich amounts to the taking of fresh evidence and the correction of anydoubts in the mind of the Court, that evidence should be repeated from thewitness-box, so that no prejudice may be caused to the accused.
A Magistrate is empowered by section 53 of the Courts Ordinance tohold his Court “ at any convenient spot ” within the limits of his judicialdivision, but it must be a judicial proceeding.j
A PPEAL against a conviction from the Magistrate’s Court, Colombo.
H. V. Perera, K.C. (with him Stanley de Zoysa and Lucien Jayeftleke),for the accused, appellant.
J.G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
June 20, 1947. Dias J.—
The appellant, who is a fitter in the Ceylon Government Railway,was convicted under section 369 of the Penal Code with having onJanuary 19, 1947, at the Railway Washing Shed, Maligawatta, Colombo,committed theft of a measure of rice from a goods wagon. He wassentenced to undergo six months’ rigorous imprisonment.
The direct evidence was to the effect that the appellant was seen toinsert an implement like a spear into the space between the door andthe door frame of a sealed and locked steel goods wagon, and therebypierced a bag of rice inside it causing the rice to flow down a grooveof the spear like water down a chute. This rice the appellant wasalleged to have collected in a bag.
It appears to have struck the Magistrate, particularly after the witnessCorteling, the immediate superior of the appellant, had given evidence,that it would be a very difficult feat to steal rice from a sealed and lockedgoods wagon. After Corteling gave evidence the Magistrate recorded :
“ I propose to stop the case to carry out a test with regard to thepossibility or otherwise of PI (being ?) inserted through a part ofthe door or frame. The number of the wagon is agreed to be 3682. ”
The Magistrate then proceeded to record the evidence of certainwitnesses who had come from a distance, and on the same day madethe further record:
“ I shall carry out the test I have stated above before I call on thedefence. ”
288
DIAS J.—Aron Singha v. BuuXtjens.
At that stage the prosecution evidence had concluded. This being asummary trial, it was the duty of the Magistrate to make up his mindwhether to call upon the accused for his defence or not. In order tomake that decision, he had to be satisfied (a) that the prosecution hadestablished the corpus delicti, and (b) if so, whether there was evidencewhich, if believed, would justify the finding that it was this accused whoCommitted the offence in question. It is plain from the above minute,that before the Magistrate made up his mind he wanted to carry out atest as to whether the coi-pus delicti had been established, i.e., whether itwas possible for anybody to abstract rice from a bag contained in a sealedand locked steel goods wagon.
Seven days later there appears the following minute on the record :
“ Accused present. Inspected wagon. Further inquiry 5.3. ”
This proves that on some day between February 21, 1947, andFebruary 28, the Magistrate had visited the scene and carried out histest. Then on March 5, he had made up his mind for he called upon theappellant for his defence. At that point Mr. Stanley de Zoysa for theappellant took the objection that the Magistrate’s procedure was incorrectand cited the case of R. v. Seneviratne The Magistrate then recorded :
“ I do not think the conditions which are stated to have prevailedat the inspection by the Court in that case and that held by the Courtin this case are analogus. I shall enlarge on this in my judgmentwhen I come to write it ; but I may say now that at the inspectionheld by me, even though there was a demonstration by a railwayofficial as to whether a piece of iron similar to the so-called daggeralleged to be used in this case could be inserted between the doorand the frame of the wagon as contended by the prosecution, I carriedout that experiment myself with the dagger produced in Court, and■found that it.was quite an easy matter to insert it in the manner relatedby the prosecution witnesses. I, therefore, hold against the defenceon this point of law.”
In his judgment, the Magistrate reverted to this subject in the followingterms :
<“ I should refer to the matter of the inspection by Court. Thiswas carried out because the defence contended that it was impossibleto insert the dagger between the door and the frame of the wagon ascontended by the police. It is true, as the defence pointed outin its objection to the actual inspection and demonstration held, that anofficer of the railway produced a similar weapon and introduced it asstated by the prosecution ; but the Court did not rely on that demons-tration, but carried out the experiment itself and found there was ampleroom between the door and the frame for the weapon to be inserted.”
Mr. Stanley de Zoysa from his place at the bar during the argumentof this appeal stated that the Magistrate expressed his intention to goto the scene and intimated that he would do so on a date suitable to
»<1936) 3S N. L. B. at p. SS3.
DIAS J.—Aron Sing ho v. Buultjens.
287
counsel. He fu» ther stated that he was instructed that thereafter ona day when he was not appearing in the Court, the Magistrate informedhis proctor that he would be visiting the scene on that day. Mr. de Zoysafurther stated that he was instructed that, although the appellant and hisproctor were present at the scene out of respect to the Court, they took nopart in the proceedings at the scene.
The system of reconstructing a crime is foreign to our system of criminalprocedure, and this was criticised in the case of R. v. Seneviratnel.In the case of R. v. Weeraswamy (the Pope Murder Case) " which wastried at Colombo and the jury expressed a desire to inspect the locusat Pussellawa, Soertsz J. ruled that the only inspection that wouldoccur would be a view by the jury of the scene .of the offence. Theywere to make their own observations. Witnesses were not to beavailable at the spot for their evidence to be taken on oath or affirmation,and if any witnesses happened to be at the spot, no questions were tobe put to them. Both these cases were decided under section 238 of theCriminal Procedure Code in regard to trials before the Supreme Court.
As was pointed out in Jayawickreme v. Siriwardene° there is noprovision in the Criminal Procedure Code, except perhaps section 153 whichrefers solely to non-summary inquiries in cases of culpable homicide, forthe inspection of the scene of an alleged offence by a Magistrate or DistrictJudge.
Nevertheless, section 53 of the Courts Ordinance (Chap. 6) empowersa. Magistrate to hold his Court “ at any convenient spot ” within the limitsof his judicial division. Thus, a Magistrate can hold his Court at a Rest-house which has not been proclaimed to be a Court-house—Wickrema-ratne v. Bastian ‘ or even in his own bungalow—Rasiah v. Sittampara-pillaV. In fact, under section 53 of the Courts Ordinance a Magistrate,provided it is within the territorial limits of his judicial divsion, can holdhis Court at any convenient spot; but it must be a judicial proceeding.The parties and their legal advisers have the right to attend. The Courtstaff must be present, and any evidence led must be on oath or affirmationand subject to cross-examination, &c. Obviously, the Magistrate in thiscase did not adjourn his Court to the railway washing shed.
In Barnes v. Pintoa it was laid down that a Count is entitled to view thelocus in quo in order to arrive at a better understanding of the evidence.But it was pointed out that such an inspection must be carried out■with great care, and should not be made the occasion for the taking of freshevidence. If anything is said or done which amounts to the taking offresh evidence and the correction of any doubts in the mind of the Court,that evidence should he repeated from the witness-box, so that no prejudicemay be caused to the accused. In the unreported case 543 M. C. Chilaw,27,230 (S. C. M. October 21, 1946) I followed this case, and came to theconclusion that the procedure was correct, because the inspection washeld at the request of the defence, and in the presence of the accused andhis lawyers, and what transpired at the inspectionwas duly recorded
1 (1936) 38 N. L. R. at p. 223.*{1918)5 C. W. R. 119.
{1941) Notable Ceylon Triale p. 108.5{1920)8 C. W. R. 116.
{1939) 18 C. L. Rec. 1S2.*(1938)40 N. L. B. 125.
48/25
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DIAS J.—Aron Singho v. Buultjens.
as evidence by subsequently calling the requisite witnesses. In Jaya-wickreme v. Siriwardene1 it was held that there can be no objection to aninspection by a District Judge or a Magistrate provided it is held with duecare and caution.
It is obvious that the Magistrate acted quite bona fide, but, never-theless, his procedure is open to criticism. Under section 53 of theCourts Ordinance he might have adjourned the trial from his Court to thescene of the offence. He did not do that. Although the appellant andhis proctor were present, things were said and done at the scene whichare irregular. The railway official who made the demonstration has notbeen called, nor has the implement which that official used been producedas an exhibit. The defence was given no opportunity of cross-examiningthe railway official. Most important of all, the Magistrate, by personallymaking the experiment, made himself a witness on a question of fact,which enabled him to decide whether to call upon the appellant for hisdefence or not. The defence had no right or opportunity of cross-examining the Magistrate on this question of fact. Judicial officers shouldbe careful not to leave their lofty and detached position as Judges anddescend to the forensic arena by becoming witnesses to facts, and therebybecome enveloped in the dust of conflict created by the contendingparties.
The conviction, therefore, cannot stand. I cannot, however, accede toMr. H. V. Perera’s submission that the appellant should be acquittedand not placed in peril twice. I quash all the proceedings and send thecase back for a new trial before another Magistrate.
Proceedings quashed.
(1939) 18 O. L. Ree. 182.