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CORNELIS v. ULUWITIKE.P. C., Qalle, 16,679.
Irregularity in recording evidence—Ordinance No. 22 of 1890, ».12—CriminalProcedure Code, e. 472—Conviction in the alternative—Warrant ittuedin the Sii}haleee language.
Evidence recorded in a proceeding against A, which disclosed anoffence on the part of B, who was not present, cannot be made use ofagainst B on a subsequent day when arrested and brought up byreading over to the witnesses in the presence of B the evidence alreadyrecorded, and examining them further and allowing B an opportunity tocross-examine the witnesses on the whole evidence. The proper courseis to record their evidence afresh.
The Penal Code does not provide for a conviction in the alternative,and therefore a conviction for " dishonestly receiving or retaining“ stolen property ” is irregular.
Per Bonser, C. J.—There is no authority in our law for the issue ofprocess in a foreign language. The language of the Ceylon Courts'T'being the English language, serious doubts might arise as to the legalityof an arrest upon a warrant issued in such form.
HE facts of the case are sufficiently stated in the judgment ofhis Lordship the Chief Justice.
Domhorst, for the appellant.
18th September, 1895. Bonser, C.J.—
Tn this case the appellant, one Bobert Uluwitike, was convictedof “ dishonestly receiving or retaining a gold hairpin worth Rs. 25,
“ the property of L. W. Cornelis, knowing the same to be stolen“ property,” and sentenced to undergo six months’ rigorous im-prisonment. There appears to have been some irregularity in the
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proceedings in this case. In the first instance, a man called 1896.Urndihami was charged and brought up by the Vidin6 Arachchi. September 18.Mr. Moor, 'who was then Acting Police Magistrate of Galle, took Boron, 0J.evidence on the charge against Urndihami. On the evidence givenon this charge it appeared that the appellant was the person fromwhom Urndihami had got the property, and the evidence pointedto Urndihami as having been innocently in possession of it. Atthat stage of the proceedings the Police Magistrate issued awarrant for the arrest of the appellant. He did not deal withUrudihami’s case, and the proceedings against him wonld appearto have dropped, for nothing more was done.
Then Robert, the appellant, was arrested npon that warrantand brought up before the Police Court of Galle, where Mr.
Hellings was at the time presiding. The witnesses who had beenheard before Mr. Moor on the charge against Urndihami werecalled as witnesses for the prosecution on the charge against theappellant. But they did not give their evidence afresh, as theyought to have done. The course pursued was that the Magistrateread out to the witnesses the evidence given by them on the pre-vious charge against Urndihami, and then examined them further.
It is said that this course was justified by section 12 of OrdinanceNo. 22 of 1890. But in my opinion that section has nothing todo with a case like the present one. It seems to me that thatsection refers to a case under section 472 of the Criminal Pro-cedure Code, which-provides that where an accused person hasabsconded, the Court competent to try or commit for trial mayexamine witnesses in his absence and record their depositions,and then when the accused is arrested and brought up thosedepositions may be given in evidence, if the witnesses are deador incapable of giving evidence) or their attendance cannotreasonably be secured. It seems to me that the 12th section ofOrdinance No. 22 of 1890 went a step further, and provided insuch a case that the proceedings might be shortened by readingover the depositions in the presence of the accused. But beforesection 12 can apply, it appears to be necessary that there must bea person accused, and that that accused must be one and thesame person. It could never have been intended that thatsection was to apply to a case where the evidence was given onthe trial of a different person, and therefore what was donein this case was irregular. I observe that the witnesses didnot even swear that what they said on the previous occasionwas true.
Then the question arises, iB this irregularity such an irre-gularity as to afford sufficient reason for setting aside theVou I.2 k
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1896. conviction ? Did it in any way prejudice the accused ? AsSeptember 18. thiB'I fan to see that it did prejudice him, and therefore I doBonsaa, O.J. not think that thiB irregularity is sufficient ground for settingaside the proceedings.
There appears to be a further irregularity in the conviction.
The appellant is found guilty of dishonestly receiving orretaining a gold hairpin. Under our Code it seems that aconviction in this form is irregular. Under the Indian PenalCode such a conviction is allowed. Section 72 of the IndianPenal Code expressly provides for a conviction in the alternative,but by some slip that section was not included in our Penal Code,although when our Criminal Procedure Code was borrowed fromIndia the clause which gave effect to section 72 of the Penal Codewas left standing. I refer to the last clause of section 210 of theCriminal Procedure Code. But this is a defect which can beamended, and therefore I order that the conviction be amendedby striking out “ or retaining.”
Then, on the merits, it was urged that the evidence wasinsufficient to support the conviction of dishonest receipt of stolenproperty. But, if the evidence is to be believed, there wassufficient evidence. The conduct of the accused in running awaywhen some difficulty arose about its disposal, and the Vidan6Arachchi was called in, points to a consciousness of guilt, andtherefore I see no reason to interfere with the conviction orsentence.
I notice that there is put np in the paper-book what purportsto be a warrant of arrest, in what seems to be the Sinhaleselanguage.
I do not understand under what authority process is issued ina foreign language, and the Solicitor-General who was in Court atthe argument professed himself unable to explain how this processcame to be issued. The language of our Courts is the English _language, and it appears to me that serious doubts might arise asto the legality of an arrest upon a warrant in such form.
CORNELIS v. ULUWITIKE