T. S. FERNANDO, J.—Don Dazarus v. Waas
Present : T. S. Fernando, J.K.M. DON LAZARUS, Appellant, and W. W. WAAS(Sub-Inspector of Police), Respondent
S. C. 242—.M. C. Colombo, 10621 jC
Criminal Procedure Code—Section 429—Power of Court ox proprio motu to examinea person present.
Fresh evidence called by a Judgo ex proprio motu, unless ex improviso, isunauthorised by the provisions of section 429 of the Criminal Procedure Code.
A PPEAL from a judgment of the Magistrate’s Court, Colombo.Ananda Karunatillehe, for the 1st accused-appellant.
P. Natjendran, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 30, 1959. T. S. Fernando, J.—
After the case for the defence had been closed the learned Magistratedecided to call a witness named Albert. Albert had been in attendanceat the trial as he had been summoned on behalf of the prosecution. His
T. S. FERNANDO, J.—Don Lazarus v. Waaa
name appears in the list of witnesses attached to the section 148 (1) (6)report presented to court. The evidence of Albert having been taken,the Magistrate made order convicting the appellant and in his statementof reasons for the conviction observed that he could not accept theevidence of the appellant and of his witness because their evidence wascontradicted by the evidence of Albert.
The material question at the trial which was one in respect of a chargeof retention of stolen property was whether the appellant’s explanationfor the possession of the stolen articles was a reasonable one. It hasbeen held unreasonable because it was contradicted by Albert. Theprosecution was at all times aware of the evidence Albert was in a positionto give but refrained from calling him. It is contended on the appellant’sbehalf that in these circumstances the introduction into the case ofAlbert’s evidence was irregular and unauthorised by the provisions ofsection 429 of the Criminal Procedure Code. A number of cases havebeen referred to before me, but it is sufficient to mention only one of them.In The King v. Aiyadurai 1, Howard C.J. formulated the principle that** fresh evidence called by a Judge ex proprio motu, unless ex imprroviso, isirregular and will vitiate the trial, unless it can be said that such evidencewas not calculated to do injustice to the accused The only use towhich Albert’s evidence was put was to discredit the appellant’sexplanation of an innocent possession of the stolen articles. The dis-crediting in this manner of the appellant’s explanation was not a matterthat arose ex impraviso > and the use to which Albert’s evidence has beenput by the learned Magistrate is, in my opinion, irregular.
I would for this reason quash the conviction and sentence of theappellant and direot that he be acquitted.
1 (1942) 43 N. L. B. 289 at 293.
K. M. DON LAZARUS, Appellant, and W. W. WAAS (Sub-Inspector of Police), Responde