042-NLR-NLR-V-23-INSPECTOR-OF-POLICE-v.-NADAR.pdf
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Present.: De Sampayo J.
INSPECTOR OF POLICE v. NADAR.
578—P. 0. Avissawetta, 32,193.
Magistrate examining accused after dose of case for defence—Summary
case—Criminal Procedure Code, ss* 295 and 429.
After the close of the case for the defence in a summary case, theMagistrate, at his own instance, purporting to act under sections295 and 429 of the Criminal Procedure Code, called the accusedinto the witness box again and put him through a long examination,part of it being in the nature of cross-examination.
Held, that this was irregular.
Section 295 does not enable a Magistrate to question an accusedin a summary case. Section 429 does enable a Magistrate only tosummon or examine any person who is not an accused.
facts appear from the judgment.
J. 8. Jayatoardene, for the appellant.
Amarasekera, for the respondent.
August 16, 1920. De Sampayo J.—
I am obliged to take notice of a serious irregularity committedby the Magistrate, The accused, who was a boutique-keeper atPuwakpitiya, was charged with having dishonestly received stolenproperty, knowing the same to have been stolen, namely, certainbrass bearings belonging to Elston estate at Puwakpitiya. Afterthe prosecution was closed, the accused gave evidence on his ownbehalf and called certain witnesses. At this stage, after the accused’sproctor has addressed the Court, the Magistrate, at his own instance,called the accused into the witness box again and put him througha long examination, part of it being more in the nature of cross-examination. The Magistrate convicted the appellant, and largelybased his opinion on the statements elicited by him when the accusedwas called a second time. The Police Magistrate purported to actunder sections 295 (1) and 429 of the Criminal Procedure Code, butit is obvious that these sections have no application and do notjustify the procedure adopted by the Police Magistrate. Section295 (1) provides that “ for the purpose of enabling an accusedperson to explain any circumstances * appoaring in the evidenceagainst him, the Police Magistrate holding an inquiry may questionthe accused generally on the case after the witnesses for the prose-cution have been examined, and may, at any stage of the inquiry
1921.
1920.
Db SampaxoJ.
Inspectorof Policeo. Nadar
for the purpose aforesaid, put to him such questions as he may thinknecessary.*1 This provision clearly has reference only to a oaaewhere the Magistrate is taking non-summary proceedings againstan accused person and not to a trial for an offence for which the Magis-trate is trying him summarily. Section 429 provides that “ anyCourt may, at any stage of an inquiry, trial, or other proceedingunder this Code, summon any person as a witness, or examine anyperson in attendance, though not summoned, as a witness, or recalland re-examine any person already examined.'* In my opinionthis provision enables a Magistrate to summon or examine anyperson who is not an accused. Consequently, the procedure adoptedby the Magistrate in this case is not justified by any provision inthe Criminal Procedure Code or in any other Ordmanoe.
On this point I may refer the Magistrate to the decisions in TheKing> v. Thuraiappa1 and Simon Appuhamy v. Bawd Appu andanofter.2 In these two oasss the Supreme Court took such a seriousview of the irregularity that the accused were even acquitted inappeal, but, considering the circumstances of the present case, I amnot disposed to discharge the accused from further prosecution, butwould quash the present proceeding and send the case back for trialde novo before another Magistrate.
Sent back.