103-NLR-NLR-V-62-K.-A.-JAYASINGHE-Appellant-and-M.-P.-W.-MUNASINGHE-Sub-Inspector-of-Police-.pdf
T. S. FERNANDO, J.
ayasinghe v. Munasvnghe
527
1959Present :T. S. Fernando, J.
K.A. J AYASINGHE, Appellant, and M. P. W. MUNASINGHE(Sub-Inspector of Police), Respondent
S. S. 7S3—M. C. Mannar, 1972
Criminal procedure—Right of accused to be defended by pleader—Criminal Procedure
Code, s. 2S7.
The accused-appellant, who was in the custody of the Police from the timeof his arrest, was produced in Court and charged with the commission of anoffence. He then applied for time to retain a lawyer. His application was how-ever refused on the ground that a postponement even of 24 hours would involvethe complainant, who was a foreign tourist, being deprived of the opportunityof leaving Ceylon as arranged by her.
Held, that, as section 287 of the Criminal Procedure Code recognises the rightof an accused person to bo defended by a pleader, the appellant’s request forpostponement was legitimate.
^/_PPEAJL from a judgment of the Magistrate’s Court, Mannar.
Colvin li. de Silva, with M. L. de Silva, for the accused-appellant.
V. S. A. Pulleivayegum, Crown'Counsel, for the Attorney-General.
Cur. adv. vult.
November 17, 1959. T. S. Fernando, J.—
The appellant appeals against a conviction and sentence enteredagainst him in the Magistrate’s Court of Mannar in a case where he wascharged with the offences of criminal trespass and attempt to use criminalforce.
528
T. S. FERNANDO, Jto—Jayasinghe v. JMtiruisinghe
Two points have been urged against the upholding of this conviction,but it has become necessary to consider only one of these points. Theappellant’s counsel urges that the appellant has been deprived of a fairtrial in that, by reason of the learned Magistrate’s failure to complywith the provisions of section 188 (2) of the Criminal Procedure Code,he had no opportunity of being defended by a pleader. It must benoted that section 287 of the Criminal Procedure Code recognises theright of an accused person to be defended by a pleader in proceedings ina criminal court.
The appellant appears to have been arrested on the 26th August 1958on a complaint made to the Police by the woman aggrieved by theconduct imputed to the appellant and then produced before the Magis-trate by the Police on the following day, viz. 27th August. On thatday he was charged with the commission of the offences referred to aboveand, on his pleading not guilty, was asked whether he was ready for trial,The record shows that the accused replied he was ready for trial, butimmediately thereafter stated he wanted tone to retain a lawyer. Ashe had a right to be defended by a lawyer nJs'Tequest was legitimate,particularly as from the_moment of-hia aFrask_the previous' day he wasin the custody of the Police till he was produced in Court. He was inmy opinion entitled to have time to retain a lawyer to defend him. Hewas refused time for this purpose because the learned Magistrate wasinformed that a postponement even of 24 hours would involve the com-plainant who was a foreign tourist being deprived of the opportunityof leaving Ceylon as arranged by her. The appellant having beenrefused the opportunity he desired, his trial began then and thereon the 27th August and ended in his conviction that very day.
It would appear that the refusal to grant time to the appellant toenable him to instruct a lawyer was influenced by the desire of theMagistrate to ensure that the prosecution would not be deprived of theevidence of the most material witness. However understandable this desiremay have been, a trial at which the appellant was deprived of one ofthe most valued legal rights of an accused person in spite of his expresseddesire to exercise that right cannot be said to be a fair trial. I havetherefore set aside the conviction and sentence.
In ordinary circumstances I would have directed that a fresh trial ofthe appellant do take place ; but it is clear that the material witnesseshave left Ceylon in circumstances in which they are never likely to returnor desire to return. The directing of a fresh trial therefore would serveno purpose.
Conviction set aside.