113-NLR-NLR-V-48-EDWIN-SINGHO-Appellant-and-JAYASINGHE-S.-I-POLICE-Respondent.pdf
CANEKERATNE J.—-Edwin Singho v. Jctyasinghe.
349
19^7Present: Canekeratne J.
EDWIN SINGHO, Appellant, and JAYASINGHE(S. I. Police), Respondent.
S. C. 1,213—M. C. Gampaka, 32,315.
Criminal Procedure—Summary trial—Calling of defence witness by Magistratebefore opening of prosecution—Irregularity—Criminal Procedure Code,section 425.
Where, in a summary trial, before the case for the prosecution wasconcluded, the Magistrate called the Medical Officer cited by the defenceand thereafter postponed the trial for the rest of the evidence—
Held, that although the practice adopted was irregular and entirelycontrary to the spirit of the Criminal Procedure Code, the irregularitywas one which was curable under section 425 of the CriminalProcedure Code.
^^PPEAL against a conviction from the Magistrate’s Court, Gampaha.
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Colvin R. de Silva (with him K. C. de Silva), for the accused, appellant.
J. G. T. Weeraratne, C.C., for the Attorney-General.March 11, 1947. Canekeratne J.—
Cur. adv. vult.
The appellant was charged on April 25, 1946, with theft of a black bullbelonging to one Charles and with attempting to stab P. C. Illangakoon.On his pleading not guilty the trial was fixed for June 3 ; on this dateon the application of the prosecuting officer, the second count waswithdrawn and the trial was postponed for July 15 ; a separate plaintappears to have been filed on this count. The trial took place on August 1,1946, and the proceedings show the following : —
“ Prosecution calls—
(Accused has cited the D. M. Oas a witness for the
defence. As this public officer cannot be kept hanging about theCourts 1 call him at this stage”.)
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CANEKERATNE J.—Edwin Singho v. Jayasinghe.
The medical witness testified that when he examined the accused onthe afternoon of April 19, the latter had certain trivial abrasions, oneon the neck, one near the jaw, two near the left ankle and one near thelight ankle. After this evidence was recorded the trial was postponedfor August 13 on which date police constable Perrera and the owner ofthe bull gave evidence for the prosecution; the accused gave evidenceon his own behalf and called two witnesses.
The version of the constable was as follows : —A party of four constables,including himself, went on patrol duty on the night of April 17 and whilethey were at a spot oh the main road, where one Alpino had been murderedabout 6 months before, they heard the footsteps of an animal that wasbeing led from the direction of Golumahara paddy fields; while theywere lying hidden they saw two men coming with a black bull along thefootpath near this spot, one, the first accused, leading the animal, theother behind it: they rushed up and caught the accused while the otherman escaped. As the accused struggled with his captors and made aviolent effort to escape they had to use force on him, they held him byhis legs and tied his hands with a handkerchief: the accused alsoattempted to stab one of the other constables.
The accused was, according to his evidence, walking peacefully alongthe footpath at an early hour of April 18 when the constables addressedhim : “ are you the chandiya ? ” ; they tied his hands and took him tothe Police Station where he was put into a cell; the Inspector then cameand assaulted him mercilessly: all this happened to him because heabused the owner of the bull and a constable the previous day at agambling den.
The Magistrate was not at all impressed with the story related by theaccused. It is such an improbable stoTy that one does not wonder atthe Magistrate remarking that the defence was an afterthought fabricatedtwo days later for the benefit of the A. S. P. The crucial test, accordingto him, in a case of this nature is the medical testimony and this testimonyentirely corroborates the case for the prosecution. Counsel for theappellant strongly criticised the procedure adopted by the Magistratein calling the defence witness first, thus enabling, according to him,the constable to bring his evidence into harmony with that of the medicalwitness. The practice adopted in this case is entirely contrary to the spiritof the Criminal Procedure Code in which the legitimate course of a trial isprescribed. The proceedings on August 1 were irregular. No departurefrom the recognised procedure should, as a general rule, be sanctionedby a Court for it is always safer to tread the well known path.
Before coming to a decision on the application made by appellant’scounsel to send the case for a retrial before another Judge, it appearedbetter to examine the Police Information Book. The statement madeby the constable as recorded therein amply bears out the story which herelated in Court: it does not seem to be a story evolved after the evidenceof the medical witness.. The trial in this case was one within the juris-diction of the Magistrate though an irregularity has occurred in the modeof conducting it; it does not vitiate the proceedings. The curativeprovisions of section 425 of the Criminal Procedure Code may well beapplied to this case ; the Privy Council applied the provisions of the
WUEYEWARDENE SJPJ.—De Saram v. Kelly.
351
•corresponding section of the Indian Code (section. 537) to a case where-the statutory provisions contained in section 360 of the CriminalProcedure Code (corresponding to section 299 of Ch. 16) regarding•depositions had not been complied with (Abdul Rahiman, 54, I. A. 196).
The accused in this case gave his own version of the facts and calledwitnesses to substantiate his stoTy; this story did not find favour withthe Magistrate ; without stultifying himself it would be difficult to set upany further defence. There is no necessity for setting aside the convic-tion, which is just and correct, simply because the procedure adopted■was wrong.
The appeal is dismissed.
Appeal dismissed.