TE2STNEKOON, C J—Bandula v. Attorney-General
Present: Tennekoon, C.J. and Ratwatte, J.G. D. BANDULA vs. THE ATTORNEY-GENERAL
S.C. 335/74—M. C. Horana 3894
Administration of Justice Law—Right of the accused to give evidencein his own defence—Failure to do so—Duty of the Magistrate—S. 168 of the Administration of Justice Law.
S. 168(2) of the Administration of Justice Law requires
a Magistrate, if he calls upon the accused for his defence, to informhim that he is entitled to give evidence in his own defence and totell him in ordinary language what the effect in law will he if hedoes not give evidence. S. 168 (3) provides that if, after the accusedis called upon for his defence by the Magistrate, the accused doesnot give evidence, the Magistrate in determining whether theaccused is guilty of the offence charged, may draw such inferencesfrom the failure to give evidence as appear proper.
Where, in convicting the accused, the Magistrate made a referenceto the fact that the accused did not give evidence and drew anadverse inference against the accused from this fact.
Held:The Magistrate having failed to comply with S. 168 (2) itis dangerous to allow the conviction to stand..
A-PPEAL from a judgment of the Magistrate’s Court,Horana.
L. D. Guruswamy, with Daya Pelpola, for the appellant.
Leo Perera, State Counsel, for the Attorney-General.
March 3, 1975. Teuhstekoon, C.J—
In this case the accused was charged with theft of Rs. 50under s. 367 of the Penal Code. The accused was convicted andsentenced to one year’s rigorous imprisonment. The evidencewas to the effect that the virtual complainant was listening to acase in the Horana Magistrate’s Court when he felt somepressure from behind. He felt someone’s hand in his shirt pocket.When he tried to seize it the money which was in the pocket fellon the ground and the virtual complainant bent down andpicked up some of the money ; the accused shouted out ‘ I am notthe rogue ’ and ran away. The Police Constable in Court chasedafter the accused right down to the market place and seized theaccused who then had a Fifty rupee note in his fist.
1»—A 17340—3,000 (75/10)
TENNEKOON C. J.—Bandula v. Attorney Oeneral
At the close of the prosecution case the learned Magistratecalled upon the accused to give evidence and he failed to complywith the provisions of s. 168 (2) of the Administration of JusticeLaw which requires a Magistrate, if he calls upon the accusedfor his defence, to inform him that he is entitled to give evidencein his own defence and to tell him in ordinary language what theeffect in law will be if he does not give evidence. Sub-section (3)of s. 168 provides that if after the accused being called upon forhis defence by the Magistrate the accused does not; give evidence,the Magistrate in determining whether the accused is guilty ofthe offence charged, may draw such inferences from the failureto give evidence as appear proper.
The accused did not give evidence but called one witness. Inconvicting the accused the learned Magistrate made a referenceto the fact that the accused did not give evidence. He drew anadverse inference against the accused from this fact. While itmay be correct that a failure to comply with s.168(2) will notin all cases vitiate a conviction, where the Magistrate, havingfailed to comply with this section, gives weight to the fact thatthe accused did not give evidence in convicting him, then in sucha situation it would be dangerous to allow such a conviction tostand. A further fact must he noted in this case that the accusedwished to call a further witness who was present in Court. Thatwitness, however, was a dumb man and was unable to testifyorally.The accused had on an earlier occasion informed Courtthat one of the defence witnesses was a dumb man and a personshould be made available for interpreting the dumb man’sgestures when he gives evidence. Although some communicationappears to have been made to the Ministry of Justice to obtainthe services of a person competent to read a dumb man’slanguage no arrangements had been made for such a person tobe present; the defence sought to call this witness and asked forfurther time till an interpreter was available. The learnedMagistrate refused the application. Having regard to all thesefacts, we do not think that the conviction can stand. We do notsee any purpose in sending this case back for a re-trial as theoffence was committed nearly three years ago. We set aside theconviction and sentence and discharge the accused.
Ratwatte, J.—I agree.
Conviction set aside and accused discharged■
G. D. BANDULA vs. THE ATTRNEY- GENERAL