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FERNANDO v. WELENIS APPU et al.P. G., Kalutara, 19,320.
Witness remaining within hearing of evidence given in Court—Right of Court toreject evidence of such witness.
A Judge has no right to reject a witness on the ground that heremained in Court in contravention of an order to withdraw.
FTER the case for the prosecution had been closed, the Police
Magistrate recorded that the accused “did not call any“witnesses for the defence except Saris, who was not in the“ witness-shed at the time, but close to the court-house and heard“ all previous evidence. I decline to hear him.”
The accused having been convicted of voluntarily causing hurtunder section 314 of the Penal Code, they appealed.
Pereira, for appellant.
The Supreme Court set aside the judgment of the Court belowand sent back the case in order that the witnesses for the accusedmight be examined.
7th May, 1895. Lawrie, A.C.J.—
In my opinion it was irregular to refuse to allow the examina-tion of a witness for the accused merely because it was said thatthe witness had been close to the court-house during the trial,and had heard all the previous evidence. Taylor on Evidence,§ 1,260, states the law.
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It was settled long ago in Chandler v. Home, 2 M. ARob., p. 433, that a Judge has no right to reject a witness on theground that he remained in Court in contravention of an order towithdraw.
The olden law of Scotland, which the learned Police Magistrateseems to have followed, was corrected by the Act 3 ft 4 Vic.,c. 59, section 3.
The Ceylon Civil Procedure Code contains a section (174) atvariance with the English law, but our Criminal Procedure Codehas no corresponding section.
Of course, if in the course of examination or cross-examination,a witness admits he was in Court during the examination of aformer witness, it is a point worthy of note ; but the accusedought not to be deprived of the right to call witnesses merelybecause they have not been kept out of the court-house.