040-NLR-NLR-V-67-G.-B.-PERERA-Petitioner-and-DISSANAYAKE-Police-Sergeant-Respondent.pdf
Present:Abeyesundere, J.
G. B. PERERA, Petitioner, and DISSANAYAKE (Police Sergeant)
Respondent
8. 0. 57—Application for the transfer of M. C. Oampola, 9263 to another
Court
Criminal procedure—Transfer of a case from one Court to another—Courts Ordinance,s. 42.
A Magistrate refused to record a very relevant answer given by a witness toa question put to him in cross-examination. He did not rule that the evidencewas inadmissible. The accused thereupon made the present application undersection 42 of the Courts Ordinance for the transfer of the case to another Court.
Held, that, for the purpose of securing a fair trial, it was necessary that thecase should be heard in another Magistrate’s Court.
Application under section 42 of the Courts Ordinance for thetransfer of a case from the Magistrate’s Court of Gampola to anotherCourt.
8. Sharvananda, for the accused-petitioner.
0. P. 8. de Silva, Crown Counsel, for the Attorney-General.
April 2, 1963. AbeyestjuderE, J.—
This is an application by G. B. Perera, the accused in case No. 9263of the Magistrate’s Court of Gampola, for an order under section 42 ofthe Courts Ordinance to transfer that case from the Magistrate’s Courtof Gampola to any other Court on four grounds, three of which are notsustainable. The fourth ground as stated in his affidavit by Mr. A. M. I.Gunaratne, Crown Proctor of Gampola, who appeared for the accusedin the proceedings in the Magistrate’s Court of Gampola, is asfollows :
“On 7.1.1963 when evidence of V. P. Gunasekera was beingrecorded the Court failed to record a very relevant answer given by thewitness, viz., ‘ that he did not insure the car as it was in the garage ’.When the Court’s attention was drawn to this fact and the Court wasinvited by me to have the answer recorded the Court refused to do so.”
There is no affidavit filed by the Proctor who appeared for the prosecutionin this case contradicting the aforesaid averment. I ha e no reasonto disbelieve the statement made by Mr. Gunaratne. The Magistratewas not legally entitled to refuse to record the answer given by thewitness Gunasekera to a question put to him in cross-examinationunless he held that such evidence was inadmissible. The record of theproceedings does not disclose that the Magistrate had ruled suchevidence to be inadmissible. I think that for the purpose of securing afair trial of the case it is necessary that the case should be heardin another Magistrate’s Court. Crown Counsel who appears for the
Attorney* General does not oppose the application for the transfer of thecase to another Magistrate’s Court. I order that case No. 9263 of theMagistrate’s Court of Gampola be transfei rod to the Magistrate’s Courtof Kandy.
Application allotoed.