039-NLR-NLR-V-33-BARTHOLOMEUSZ-v.-VELU.pdf
MACDONELIi C.J.—Bartkolomeusz v. Vein.
ttt
1931
Present: Macdonell C.J.BARTHOLOMEUSZ v. VELU.
531—P. C. Kandy, 35,968.
Information book—Police. Magistrate perusing extracts from book at close ofthe case—Irregularity.
Where a Police Magistrate at the conclusion of the evidence in a casesent for and perused the police information _ book, for the purpose ofarriving at a decision,—
Held, that the use of the information book was irregular.
Where a Magistrate wishes to use the information book, he should callthe Police Officer who recorded the information.
^^PPEAL from a conviction .by the Police Magistrate of Kandy.
R.L. Pereira, K.C. (with him H. V. Perera and Gratiaen), for accused,,appellant.
September 25, 1931. Macdonell C.J.—
In this case the accused was charged and convicted under section 345of the Penal Code. Evidence was led for the prosecution, and the accusedhimself gave evidence denying the offence alleged and called two witnesses.The accused was represented by a proctor. After evidence for bothprosecution and defence had been led there occur the following entriesin the record:—“ Closed. Let I. B. extracts be produced to-morrow,.10/6/31. Accused present. I find him guilty . . . . 116/31.Copies of the information'book extracts are duly filed in the record of the-case. These entries in the record can, I think, only mean this, that afterhearing the evidence on both sides the learned Police Magistrate was-not quite satisfied which side he should believe, and that he sent for theinformation book to assist him. This is a purpose for which the infor-mation book must not be used, and to my thinking it vitiates the-conviction. There is abundant authority for this and perhaps I needonly cite the latest reported authority, Paulis Appu v. Don Davith,.reported in 8 Times of Ceylon Law Reports, page 59. There Mr. Justice-Akb&r said: “ The conviction is further vitiated by what, I think, is a."very serious fault on the part of the Magistrate. After the case was closedon August 26 the Magistrate deferred judgment, noting down that hewished to peruse the information book. In my opinion it was a mistake-,on the part of the Magistrate to have looked at the information book toenable him to come to a decision in the case. ”
The present case seems to me to fall absolutely within the same principle,
• and if so, the appeal against the conviction must be allowed. .
The reason why the Court should not use the information book tohelp itself in arriving at a conclusion which side to believe is that the-Court would thereby be supplementing sworn and cross-examined evidence
6J. H. A 99910 (8/50)
162
DRIEBERG J.—Deputy Fiscal, Matara v. Don Carotis.
by evidence—if it can be so called—neither sworn nor cross-examined.But this would be contrary to very simple principles. If the Magistratehad wished to bring the information book into the case, there was a verysimple way of doing so, namely, to call the Police Officer who recordedthe information. He would then have been sworn, examined, and cross-examined, and the statements shown by the information book to havebeen made would have become evidence under section 157 of the EvidenceOrdinance.
The only question I have to decide is whether I ought in allowing theappeal to quash the conviction or to send the case back for a new trial.In this case the evidence is as to acts done and words spoken nearlyfour months ago, as to which the memories of the witnesses cannot beexpected to be as good as when they gave evidence shortly after theoccurrence. If the Magistrate sent for the information book at the en4of the evidence in this case, that means that he had a difficulty in beingsatisfied as to the prosecution case and that difficulty would not belessened but on the contrary would be increased, if that evidence wereto be repeated now after the lapse of months even before a new Court oftrial. I think therefore that it would be more in the interests of justicein allowing this appeal on the grounds above stated if I were also to setaside the conviction, and that is the order which I now make.
Set aside.
O