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August 18and 19.
GOMIS v. AGORIS.P. C., OaUe, 21,570.
Summary trial—Adjournment for further evidence—Conviction ofaccused on such, evidence—Ceylon Penal Code, as. 223 and 354.
A Police Magistrate has no power to adjourn a summary trial toenable the complainant to make inquiry and find out furtherevidence against the accused.
So, where a Magistrate having found that the evidence adducedfor the prosecution was insufficient to justify the conviction of theaccused, adjourned the trial for such further evidence, and afterhearing the same convicted the accused thereon, held, that theproceeding was illegal, and the conviction could not stand.
^JpHE facts of the case sufficiently appear in the judgment.
Bawa, for appellant.
Jayawardene, for respondent.
19th August, 1896. Withers, J.—
A novel and important point was made for the appellant in thi3case, to which I shall presently make more particular reference.
One Gomis complained to the Magistrate on the 20th July thatone Agoris had committed an offence under the 368th sectionof the Penal Code, in that he had stolen some 4,000 plants, valueRs. 90, on the 2nd and 12th July from the complainant’s teaestate called Monrovia, and that one Toronis had received 4,000of the said plants knowing the same to have been stolen, andthereby committed an offence under the 394th section of the PenalCode.
The written complaint further alleged that 4,500 of the saidstolen plants were in the possession of one Balahami, but no chargewas laid against this person.
She was, however, brought up before the Magistrate and madea defendant. After examining the complainant and one of hiswitnesses the woman Balahami was discharged.
Balahami and three other witnesses were examined, after whichthe Magistrate made the entry and order in his record :
“ Complainant has no further evidence ; thinks he may obtain“ further information on further inquiry. Postponed to the“ 24th instant. Accused admitted to personal bail in Rs.
On the 24th July two new witnesses—I say new witnessesbecause their names do not appear in the complainant’s list ofwitnesses, nor were they mentioned by any one in the course ofthe trial up to that date—were examined for the prosecution.
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’ One witness lives hard by Monrovia estate, and the other cultivates 1806.
the field adjoining it.August 19
Both deposed that about the 12th July, after nightfall, they
had actually seen Agoris, in company of another man, actually WrrHBBS’ J-uprooting tea plants from Monrovia estate.
The accused gave evidence on his own behalf. In the end theMagistrate convicted the appellant Agoris of stealing 4,000 plantson the 12th July.
He did so because he believed the evidence of the two newwitnesses called for the prosecution.
In the course of his judgment the Magistrate observes that thecase made out by the prosecution at the date of adjournment iorfurther inquiry on the 20th July furnished nothing more thanstrong suspicion—upon the evidence then before him he says hecould not have convicted the accused.
Now comes the point of law. Was it legal for the Magistrate.in the circumstances to adjourn the case at the close of theprosecution on the 20th July, “ as complainant thought that he“ might obtain further information on further inquiry,” and couldhe admit the new evidence and take it into consideration ? Itwas contended for the appellant that this could not be done in thecourse of a summary trial.
Reliance was placed by the complainant’s counsel on section354 of the Criminal Procedure Code and section 223 of OrdinanceNo. 22 of 1890.
The first enacts : “ If in the absence of a witness, or any other“ reasonable cause, it becomes necessary or advisable to postpone“ the commencement of or adjourn any inquiry or trial, the Court“ may from time to time order a postponement or adjournment“ on such terms as it thinks fit, for such time as it considers reason-“ able, and may remand the accused if in custody, or take bail“ in his own recognizance or with sureties for his appearance.”
This was not the case of a witness for the prosecution being absent.
Can then the trial be said to have been adjourned for reasonablecause ?
To give the complainant an opportunity of finding evidence tomake a sufficient primd facie case against a defendant in the courseof a summary trial cannot, in my opinion, be said to be a reasonablecause for an adjournment. a
It would afford an opportunity to an unscrupulous person tomanufacture evidence of the kind required to fix an ■accused personwith guilt.
As well might a Judge adjourn a trial before a jury <5EFthe groundthat though the prosecution had made out no case against
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August 18and 19.
the prisoner, yet if the prosecuting counsel was allowed a fortnightfor further"inquiry, he might be ready with evidence which on thenext occasion would furnish a primd facie case against the prisoner.
Section 223 of Ordinance No. 22 of 1890 enacts as follows :—“ If“ the police magistrate, upon taking the evidence referred to in“ section 221, and such further evidence (if any) as he may, of his“ own motion cause to be produced, and (if he thinks fit) examining“ the accused, finds the accused not guilty, he shall record an order“ of acquittal. If he finds the accused guilty, he shall pass sentence“ upon him according to law.” But this section does notapply to this case. The Magistrate did not of his own motion causethe further evidence to be produced ; and I take it that this sectionrefers to some specific evidence pointed at in the cause of thetrial, and not to any possible evidence which may be brought tolight by inquiry de hors the Court.
Hence, in my opinion, the adjournment of the trial was not onlya dangerous, but an illegal course to pursue. It follows thereforethat the conviction must be set aside and the appellant acquitted.
GOMIS v. AGORIS