043-NLR-NLR-V-07-JONKLAAS-v.-SILVA.pdf
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JONKLAAS v. SILVA.
P.C., Kalutara, 4,603.
1904.
February 17.
Criminal Procedure Code, s. 190—Examination of witnesses at trial of case—Powers of Magistrates hating joint jurisdiction to hear case—Regularityof procedure.
Where one Police Magistrate of a Court began a trial, and. beingdisqualified by interest, another Magistrate, having joint powers with-him, recalled the witnesses already examined, read the evidence givenby one of them and cross-examined him, and after the case for theprosecution had been closed called a witness to support the case for theprosecution,—
Held, that such procedure was not irregular.
T
HE accused, being convicted of illicitly cutting and dis-honestly removing timber from Crown land and sentenced
to a fine of Es. 100, appealed to .the Supreme Court.
Van Langenbcrg, for appellant.—Mr. W. F. de Saram, whoconvicted the accused, should not have considered the evidence ofMr. Koelman and Mr. Orr, which had been taken by Mr. Kin-dersley. After this evidence had been taken, Mr. Kindersleyfound that, as Assistant Government Agent, he had ordered theprosecution, and therefore he referred the case to Mr. De Saram, theItinerating Police Magistrate, who recalled these witnesses. Heexamined Koelman only, but not Jonklass. At the same time hereceived their evidence taken by Mr. • Kinderslev. This wasirregular and fatal to the prosecution. Appuhamy v. Ljidia(1 C. L. R. 14); The Courts Ordinance, section 89; Go mis v.Agoris (2 V. L. R. 180). . Counsel argued on the facts also.
Rdmanathan, S.-G., for respondent.—The accused has not beenprejudiced. The cases cited do not apply. The procedureobjected to is not illegal.
17th February, 1904. Wendt,* J.—
Mr. Kindersley, the resident Police Magistrate of Kalutara,commenced the trial of the appellant <in 21st December, 1903, andexamined the complainant (Mr. Jonklaas) and Mr. Koelman?Before the lat.ter was cross-examined it was discovered thatMr. Kindersley, as Assistant Government- Agent^ had directed theprosecution, and he therefore declined to proceed further withthe trial. He sent .the case before the Itinerating Police Magis-trate. Mr. De Saram, who on the, same day commenced the trialafresh. Mr. Koelman was examined anew and cross-examined.
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1904. Mr. Jonklaas was then called and his evidence already recordedFebruary 11 was read, after which he was cross-examined. It was objected byWendt J appellant, on the authority of Appuhamy v. Undia (I 0. L. R. 14),that Mr. De Saram had no jurisdiction to take the case out ofMr.Kindersley’s hands,but thecasesare distinguishable.
In thecasecited, theformer Magistrate(Mr. Cooke) was
competent to proceed with and complete the trial, Mr. Kinderslevwas disqualified by interest. Again, Mr. De Saram has jointpowers with Mr. Kindersley (both being Magistrates of the' PoliceCourt of Kalutara), which Mr. Cooke and Mr. Molamure had not(see judgment of Clarence, J). The objection therefore fails.
So also does the objection to the Magistrate’s having, after thecloseoftheprosecution,called awitness,viz., the headman.
Thishewasentitled todo undersection190 of the Criminal
Procedure Code, and the case is entirely different from that reliedon by accused’s proctor, viz., Gomia v. Agoria (2 N. L. R. 180).
On the merits, I think the conviction is sustained by the evidence.
The appeal is therefore dismissed.