Jamaldeen v. de Silva (S. I, Police)
1954Present: Ganasekara J.JAMALDEEN, Appellant, and P. J. DE SILVA (S. I. Police),Respondent
S. C. 1590—M. C. Colombo, 35,755j A
Criminal Procedure Code—Proviso to section 297—Scope of its applicability—Sections
151 (1), proviso 2, 151s, 407.
By Section 297 of the Criminal Procedure Code,
“ Except as otherwise expressly provided all evidence taken at inquiriesor trials under this Ordinance shall be taken in the presence of the accused orwhen his personal attendance is dispensed with in the presence of his pleader :
Provided that if the evidence of any witness Bhall have been taken in theabsence of the accused whose attendance has not been dispensed with, suchevidence shall be read over to the accused in the presence of such witness and theaccused shall have a full opportunity allowed him of cross-examining suchwitness thereon. ”
Held, that the proviso does not enable the prosecution to utilize as part of itscase at a trial evidence taken in the accused’s absence before he was charged.
ApPEAL from a judgment of the Magistrate’s Court, Colombo.No appearance for the accused appellant.
S. A. Pullenayagam, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
(1917) 4 C. V/. R. 172.-
GTXNASEKARA J.—Jamaldecn v. de Silva (3. I. Police)
August 16, 1964. Gunabekara J.—.The appellant was convicted, after a summary trial under seotion 152
of the Criminal Procedure Code* on a charge of having dishonestlyretained a stolen radio receiving set valued at Rs. 260, knowing or havingreason to believe it to be stolen property, and was sentenced to 12 monthsrigorous imprisonment. The evidence that was taken at the trial in thepresence of the appellant is clearly insufficient to support the conviction.The learned crown counsel agrees that by itself it is insufficient, but hehas sought to eke it out with some evidence that was taken in the appel-lant’s absence, under section 407 of the Criminal Procedure Code. Theevidence of each witness who was examined on that occasion was readover to the appellant at the trial in the presence of the witness and theappellant was given an opportunity of cross-examining the witness onthat evidence. The learned crown counsel contends that by reason of theprovisions of section 297 of the Code the evidence so read to theappellant was thereby made a part of the case against him.
The proceedings in the magistrate’s court were instituted on the28th January, 1953, upon a police report under section 148 (1) (6) of theCriminal Procedure Code. The evidence taken in the appellant’s absencewas taken on the 25th March. He appeared before the court for thefirst time on the 23rd November, and on that day the learned magistratedecided to try the case summarily and framed a charge against him interms of the allegation in the police report. He pleaded not guilty, andthe trial was postponed to the 7th December. The trial was hold onthat day and the appellant was convicted.,
Section 297 of the Criminal Procedure Codo is in theso terms :
“ Except as otherwise expressly provided all evidence taken atinquiries or trials under this Ordinance shall be taken in tire presenceof the accused or when his personal attendance is dispensed with inthe presence of his pleader :
Provided that if the evidence of any witness shall have been takenin the absence of the accused whose attendance has not beon dispensedwith, such evidence shall be read over to the accused in the presenceof such witness and the accused shall have a full opportunity allowedhim of cross-examining such witness thereon. ”
The main part of the section lays down the rule that evidence must betaken in the presence of the accused or his pleader except in those casesin which the law has expressly provided for evidence to be taken in theirabsence. The proviso relates to one class of these exceptions, namely,where an inquiry or trial, as the case may be, has been proceeded within the absence of an accused whose attendance has not been dispensedwith, and who is therefore absent in breach of an obligation to be present.What is enacted in the proviso is a procedure for giving the accused anopportunity of dealing with evidence that has been made a part of thecase against him in his absence. I do not agree with the view contendedfor by the learned crown counsel that it is a procedure which enables theprosecution to put in at an inquiry or trial evidence that was taken in theaccused’s absence before the commencement of that inquiry or trial.
GTJNA8EKARA J.—Jamaldcen vkde-Bilva (8.1. Police)
As I read the proviso it does not enable' the prosecution to utilize inone proceeding, whether an inquiry or trial, evidence that was taken inanother, by merely having it read to the accused so that he may oross-examine the witness.-
Support for a contrary view was sought in the judgment of Soertsz J.in Musafer v. Wijesinghel, where he deoided that certain depositions thatwere taken before the trial in the absence of the accused must be heldto have been taken under the second proviso to section 161 (1) of theCriminal Procedure Code upon an oral complaint made under section148 (1) (a), and that therefore the reading over of those depositions tothe accused at the trial was justified by'the proviso to section 297. Thequestion that was discussed appears to be whether in the circumstancesof that case the taking of the depositions in the absence of the accusedwas justified by any provision of law ; and it appears to have beenassumed that if the case fell within any exception to the general rule,that evidence must be taken in the presence of the accused (or his pleader),the proviso to section 297 would justify- the reading of the depositions atthe trial. Possibly the reason for this assumption is to be found in theprocedure that was prescribed by the Code before it was amended byOrdinance No. 13 of 1938 ; for before the amendment the magistrate wasrequired to read over to the accused at the commencement of a non-summary inquiry or a summary trial any depositions taken before theissue of process and recorded under section 150 (1). But this procedurewas expressly laid down by sections 166 (1) and 189 (1) in regard to non-summary inquiries and summary trials respectively, and is not referableto section 297. Depositions now taken under the second proviso tosection 151 (1) of the Code as amended, and recorded as required bysection 161b, would, before the amendment, have been taken undersection 149 (l) and recorded as required by section 150 (1). The provi-sions for the reading over of these depositions to the accused, that werecontained in sections 156 (1) and 189 (1) before the amendment, findno place in the Code as amended. With all respect to the view expressedby Soertsz J., it seems to me that there is no justification for readingthese provisions now into section 297, which has not been amended.Moreover, it is not to every exception to the general rule laid down insection 297 that the proviso applies, but only to those cases where evidenceis taken in the absence of an accused whose attendance has not beendispensed with. There can be no question of the attendance of an accusedperson being or not being dispensed with until the proceedings havereached a stage at which the accused is under an obligation to attendunless his attendance is dispensed with. Clearly that stage has notbeen reached when the question for decision is whether process Bhouldissue, that is to say, whether the accused should be required to attend.
The learned crown counsel has also cited two other cases as throwinglight on the present question. In the, first of these, James Singho v.Ratnapura Police2, Basnayake J. held* that a deposition taken undersection.407 could not be put in evidence .by its being read at the trial inthe presence of the accused and the witness being cross-examined. But,
(iW/) 43 N. L. R. 61.
(1949) 39 C. L. W. 79.
Kanagarainam v. Bartholotneuaz .
as was pointed out by Nagalingam J. in Fernando v. S. I. Police, Weli.kada *, which is the other case cited by orown counsel, it does not appearthat the provisions of section 297 were considered by Basnayake J. Itwas held by Nagalingam J. in the latter case that the proviso to section297 was applicable to certain evidence that had been recorded undersection 407 in the absence of the accused, and that the procedure adoptedat the trial, of reading that evidence to the accused in the presence of thewitness and giving the accused an opportunity of cross-examining thewitness, was unexceptionable. It is not clear, however, whether theevidence in question had been taken after the accused had pleadedto the charge (as in James Singho v. Ratnapura Police a) or before. Inany event, the question that arises in the present case, whether theproviso to section 297 can apply to evidence taken in the accused'sabsence before he was charged, was not considered. In the view that Itake of the proviso the evidence that was taken on the 25th March,1953, before the commencement of the trial, was not made a part of thecase against the appellant at the trial by its being read to him in thepresence of the witnesses and by hio being given an opportunity of cross-examining them on that evidence. With all respect to my brotherNagalingam, I am unable to agree with the view expressed in Fernandov. S. I. Police, Welikada1, that the proviso “ embodies a rule laying downa general principle of legal admissibility of evidence recorded in theabsence of an accused person In my opinion what it lays down isan imperative rule of procedure for informing the accused of the evidencetaken in his absence and giving him an opportunity of cross-examination,and not a rule governing admissibility of evidence. It can only applyto evidence that has already been admitted at an earlier stage of thesame inquiry or trial.'
I allow the appeal and acquit the appellant.
JAMALDEEN , Appellant , and P. J. DE SILVA (S. I. Police), Respondent