046-NLR-NLR-V-71-K.-V.-SUBRAMANIAM-Petitioner-and-THE-INSPECTOR-OF-POLICE-KANKESANTURAI-Resp.pdf
204
<Subramaniam v. Inspector of Police, Kankesanturai
Present: Weeramantry, J.
K.V. SUBRAMANIAM, Petitioner, and THE INSPECTOROF POLICE, KANKESANTURAI, Respondent
S.C. 274 of 1968—Application in Revision in M. C. MaUalcam,
4001
■Criminal procedure—Non-summary proceedings—Right of accused to be represented,by pleader—Scope—Importance of an accused person's right- to have theprosecution witnesses cross-examined by Counsel—Non-summary proceedings—Rzvisionarr/ jurisdiction of Supreme Court—Criminal Procedure Code, as. 5,157 (3), 1S9, 287—Courts Ordinance, as. 19, 21, 40—Evidence Ordinance,s. 33.
An accused person is entitled to be defended by a pleader at the stage of' non-summary proceedings. This fundamental right of representation by apleader, which is assured to all persons by section 287 of the Criminal Procedure
Stibramaniam r. Inspector of Police, Kanktsanturai
203
Code, includes the right of an unrepresented accused, who has been in policecustody from the time of his arrest, to retain counsel and have a prosecutionwitness cross-examined by such Counsel even after the witness has been alreadyquestioned by the accused in terms of section 157 (3) of the Criminal ProcedureCode. “ In testing, in a given case, whether the right assured by section 287 ofthe Criminal Procedure Code has in fact been enjoyed, a Court will guide itselfby the spirit of the law rather than by a regard to technicalities, and will not^ conclude that the right has been afforded unless it has been effectively' afforded.”
Opportunity must, be given to an accused person to get proper legal advicebefore he is called upon to cross-examine the prosecution witnesses, especiallywhen he has been in custody from the time he was arrested.
It is within the province of the Supreme Court, in its revisionary jurisdiction,to make orders in regard to non-summary proceedings pending before aMagistrate.
The accused-petitioner, who was arrested on suspicion of having committedmurder, was produced in police custody the next morning before theMagistrate. When non-summary proceedings commenced on the same day, theaccused was unrepresented when tho deposition of one Kandasamy, the firstwitness for the prosecution, was recorded. The witness, who claimed to haveseen the accused firing the fatal shot at the deceased person, was questioned bythe accused in terms of section 157 (3) of the Criminal Procedure Code. Aftert he questioning of Kandasamy was concluded, a Proctor appeared for the accused'and was present when the deposition of another person, who also claimed to bean eye-witness, was recorded. On the application of the Proctor who statedthat he did not have the necessary instructions, the cross-examination of thesecond witness was postponed. On the next date the accused was representedby Counsel, on whoso cross-examination the second witness went backcompletely upon his claim to have been an eye-witness and admitted that hedid not see the shooting. A third witness was then called by the prosecution,but he denied having seen the shooting and in fact stated that he saw a personother than the accused with a gun in hand immediately after tho incident. Ona resumed date of the inquiry, application was made by Counsel on behalf ofthe accused that the first witness Kandasamy be re-called for further cross-examination on certain matters vital to the defence; Counsel stated that theaccused was unrepresented on the first day of the inquiry and, having beenbrought from the police cell, did not know the nature of the proceedings. TheMagistrate refused the application for the reasons (1) that ho feared that theother witnesses for the prosecution had keen suborned and that witnessKandasamy too would “ succumb to the same sort of pressure ”, and (2) thatThe accused would have an opportunity of cross-examining Kandasamy later atthe stage of trial.
Held, that, in the circumstances, the Magistrate’s refusal to permit thewitness Kandasamy to be cross-examined by Counsel was in effect a denial tot he accused of his fundamental right of representation by a pleader. The factthat the accused questioned the witness in terms of sections 189 and 167 (3) ofthe Criminal Procedure Code ooold not result in a forfeiture of his right to bedefended by a pleader, for circumstances did not permit him on his own toretain a lawyer previously. Moreover, the reasons given by the Magistrate insupport of his refusal to permit cross-examination were clearly not sustainable.
206
WEERAMANTRY, J.—Subra.naniam v. Inspector of Police,
K ankesanlurai
ApPLICATION to revise an order of the Magistrate’s Court, Mallakam.
Colvin R. de Silva, with S. Sharvananda, if. if. Nalliah, Bala Nadarajahand Ananda Paranavitane, for the Accused-Petitioner.
L. D. Quruswamy, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
August 11, 1908. WEERAMANTRY, J.—
This application raises a matter of fundamental importance in ourcriminal law, for it involves the right of an accused person to bedefended by a pleader at the stage of non-summary proceedings.
In this case the accused stands charged with the murder of one Ramanwho is alleged to have been shot dead by the accused on the 9th of April1908. That same evening the accused and two others were arrestedbut these two others were released and the accused was detained over-night in police custody and produced in custody the next moruing beforethe learned Magistrate.
Plaint was filed before the learned Magistrate at the scene on themorning of the 10th April charging the accused with the murder of Ramanand on that same day the prosecution led the evidence of Raman Kanda-samy the son of the deceased. This witness claimed to have seen theaccused firing the fatal shot.
During the recording of the deposition of this witness the accused wasunrepresented. The record shows however, that the witness has beenquestioned on his deposition and this was presumably done by the accusedin terms of section 157 (3) of the Criminal Procedure Code.
After the questioning of the first witness Avas concluded a proctorappeared for the accused and was present during the recording of thedeposition of Kathirapillai, a brother of the deceased Avho Avas called bythe prosecution as its second Avitness. This \ritness too claimed to haveseen the accused levelling his gun at the deceased and firing the fatalshot.
After the conclusion of Kathirapillai’s deposition the proctor appearingfor the accused stated to the learned Magistrate that he would like tocross-examine this Avitness later, as he did not at that stage have thenecessary instructions. This application Avas alloAved and on the nextdate the accused was represented by learned Queen’s Counsel Avho cross-examined Kathirapillai. Under cross-examination Kathirapillai wentback completely upon his claim to have been an eye-Avitness and admittedthat he did not see the shooting. He further admitted specifically that
WEERAMANTRV. J.—Subramaniam v. Inspector of Police,207
Konkesaniurai
his statement to the learned Magistrate that he had seen the accusedlevelling the gun and firing at the deceased was false. He attributed theuntruthful evidence he had earlier given to his anger at the incident thathad occurred.
The son of this witness, a boy by the name of Ambikaipathy, was callednext. He did not claim, however, to have seen the shooting and in factstated that he saw a person other than the accused with a gun in handimmediately after the incident.
The matter was adjourned and on the resumed date of enquiry theaccused was represented by learned Counsel who made an applicationthat the first witness Kondasamy, who had given evidence at the scene,be recalled for further cross-examination as it was necessary to cross-examine him on certain matters vital to the defence. Learned Counselstated also that the accused had not been in a position on that day to askthese questions as he had had no assistance from his Counsel and had notknown the nature of the proceedings. It was also stated to the learnedMagistrate that the accused had been unaware of the fact that by askinga few questions he ran the risk of depriving himself of the right ofcross-examining the witness. The attention of tho learned Magistratewas also drawn to the fact that the accused had been brought to the scenefrom the police cell.
The learned Magistrate reserved his order upon this application andmade order subsequently refusing this request of the defence. It wouldappear also from the order of the Magistrate, though there is no record tothat effect in the proceedings themselves, that on the date when learnedQueen’s Counsel appeared he too had made an application that thewitness Kandasamy be recalled by Court and tendered for further cross-examination. It is observed by the Magistrate in the course of his orderthat at that stage he had indicated to Queen’s Counsel that afterhearing the other two eye-witnesses he would recall Kandasamy if hefelt that it was necessary to do so in the interests of justice.
This order of the learned Magistrate is now canvassed on the groundthat in the circumstances of this case the Magistrate’s refusal to permitKandasamy to be cross-examined by Counsel is in effect a denial to theaccused of the fundamental right of representation by a pleader, which isassured to all accused persons by section 287 of the Criminal ProcedureCode.
The order of the learned Magistrate sets out certain reasons for hisrefusal to permit the cross-examination requested by the defence. Oneof these reasons is that the witness Kathirapillai who went back on hisevidence had done so " too obligingly ” and for reasons best knownto him, the implication of this observation being that the witness hadbeen suborned. The learned Magistrate in view of this circumstanceexpressed a fear that the witness Kandasamy if recalled in that court would
208WEERAMAXTRY, J.—Subramaniam r. Inspector of Police,
Kankcsanturai
“ succumb to the same sort of pressure ”. . The learned Magistrateobserved that he did not feel justified in exercising his discretion andrecalling this witness.
A further reason adduced by the learned Magistrate was that since theaccused would have an opportunity of cross-examining Kandasamy lateron, no grave prejudice would be caused to the accused if Kandasamy wasnot recalled at that stage. The learned Magistrate finally observed thatin view of the circumstances set out by him he felt justified in refusingthe application although ordinarily he would have recalled this witnessand permitted Counsel to cross-examine him.
Before I consider the main question involved in this application I shouldstate preliminarily that it is undoubtedly within the province of thisCourt to make orders in regard to non-summary proceedings pendingbefore a Magistrate. It is of course clear that this Court will not lightlyinterfere in non-summary matters butatthesame time it is unquestionablethat the powers of this Court under sections 21 and 40 of the CourtsOrdinance may be exercised in respect of non-summary proceedings andthat, to quote Nagalingam J., this power exists in the case of non-summaryoffences through the entire gamut of non-suinmarv proceedings in theMagistrate’s Court ”.1
I need not dwell further on this aspect of the matter except to referfinally to the judgment of a Divisional Bench of this Court in The Attorney-General v. Don Sirisena2 where this Court used its revisionary power anddirected a Magistrate to comply, in non-summary proceedings, with theinstructions of the Attorney-General. The Court held that section 19 ofthe Courts Ordinance read with section 5 of the Criminal Procedure Codewas wide enough to afford powers of revision in relation to non-sutnmaryproceedings.
I come now to the main question which I must determine, namelywhether there has been a denial to the accused of the right conferred onhim by section 287 of the Criminal Procedure Code, a right which thisCourt has described as being “ now ingrained in the rule of law andrecognised in the lawof criminal procedure of most civilised countries ” 3.In testing, in a given case, whether the right so assured has in fact beenenjoyed, a Court will guide itself by the spirit of the law rather than by aregard to technicalities, and will not conclude that the right has beenafforded unless it has been effectively afforded. It seems to me thereforethat the question to be answered in the present case is whether the accusedhas had in substance and in fact rather than in the niceties of legal theorythe right of representation by a pleader when Kandasamy deposed beforethe learned Magistrate.
1 Attorney-General v. Kanagal'atnam (1950) 52 -V. L. It. 121 at 126-7; see alsoAUes v. Palaniappa Chetly (1917) 19 A L. R. 334.
(1968) 70 N.L.R. 347.
per T. 8. Fernando J. in Premaralne v. Qunasekera, (1964) 71 N. L. R. IPJ.
WEERAMANTRT, J.—Subramaniam o. Inspector of Police,
Kankesanturai
209
It needs little reflection to realise that the right we are here consideringis a many faceted one, not truly enjoyed unless afforded in its many variadaspects. Thus the right to a, pleader means nothing if it is not associatedwith the time and opportunity to retain one *, nor can there be a trueexercise of this right where a pleader has in fact been retained but beenclearly afforded insufficient time for the preparation of his case and forobtaining instructions from the accused8. Indeed this Court has, despitethe complainant, a foreign tourist, being scheduled to leave the countrywithin 24 hours, nevertheless held that an accused person who was inpolice custody from the time of his arrest, should be granted time toretain a lawyer 8. Hence the right does not mean merely that an accusedperson is entitled in theory to be defended by a p’eader but also that hemust enjoy all those concomitant privileges without which the right isreduced to a cipher.
The remarkable speed with which plaint was filed in this case rendersit extremely doubtful that the accused had the opportunity of consultingor retaining a lawyer to appear for him at an inquiry held the morningafter his arrest, and following on a continuous period of police custody.In an uncontroverted affidavit before this court the accused-petitioner hasstated that the proctor who eventually arrived at the scene of inquirythat morning had been retained by his relatives and I see no reason tothink that in the circumstances of this case the accused himself had hadany opportunity of consulting, instructing or retaining a lawyer himself.It is also significant that the proctor when he first appeared brought it tothe Magistrate’s notice that he had not obtained necessary instructionsfrom his client.
The scope of the privilege of representation by counsel as examined insomewhat greater detail by the Indian and American courts may herebe briefly noticed.
Section 340 of the Indian Code of Criminal Procedure which contains aprovision corresponding to that we are now considering, has beenconstrued to mean that full opportunity should be afforded to theaccused to get proper legal advice and assistance before he is calledupon to cross-examine the prosecution witnesses.1 * * 4. Thus where anaccused person has been arrested and placed in custody and is thensuddenly tailed upon to conduct his case without an opportunity havingbeen given to him of obtaining legal assistance, there is in effect adenial of the right to Counsel.4 In the case referred to the accusedhad been kept in detention for a period of ten days with the resultthat he had had no opportunity of obtaining legal assistance. I seeno distinction -between such a case and the present, where there has
1 The Queen v. Prins (1962) 61 O. L. W. 26.
2 he Queen v. Peter (1961) 64 N. L. B. 120.
Jayasinghe v. Munaaivghe, (1969) 62 N. L. B. 527.
4 In m Rangoaomy Podoyachi (1916) 16 Cr. L. J. 786.
4 Rajbansi v. The Emperor (1921) 22 Criminal Law Journal 228.
20-PP 006137(98/08)
210WEERAMANTRY, J.—Subramaniam v. Inspector of Police,
Kanlcesanturai
been an equal denial of opportunity inasmuch as from the time of hisarrest till the time of his production before the Magistrate the accusedwas in police custody. As was observed in Agaraival v. EmperorJ, aMagistrate is bound to give an accused person sufficient facility to berepresented by a lawyer especially when he is in custody from the time hewas arrested and accused of an offence.
The Indian Courts have taken tho principle of representation so far asto hold it to be essential at the stage of examination in-chief no less thanin cross-examination, for the reason that the skill and knowledge of alawyer confer real advantages on an accused person at the stage ofexamination-in-chief, through objection being taken to inadmissible andirrelevant evidence and to leading questions.2
Likewise, in recent years the American Supreme Court has handeddown some outstandingly important decisions relating to the scope of theright to the assistance of Counsel, as provided in the Sixth Amendmentto the American Constitution. This Amendment provides that “ In allcriminal prosecutions the accused shall have the right … to have theassistance of Counsel for his defence. ”
The right has been given a progressively extended interpretationtaking it back to the stage of arraignment (i.e. formal framing of charges)3,the stage of preliminary examination prior to arraignment4 and to thestage of police investigation itself 6 at which, after attention has begun tofocus on a particular suspect, even interrogation is not permissible in theabsence of a defence attorney6 .
So also in America the introduction of evidence given at a previoushearing not held at a time and under circumstances affording the petitionerthrough Counsel an adequate opportunity to cross-examine the witnesshas been held to be a denial of the fundamental right essential tp a fan-trial 7.
It will thus be seen that a liberal attitude underlies the modern approachto the right of representation. This is in conformity with an appreciationthat the Rule of Law lies at the basis of this right, a principle which asalready observed, has been recognised by this court8. It would be inaccordance with this view of the scope and basis of section 287 that thelack of effective opportunity for the exercise of the right which it assuresshould be viewed as a denial of the right itself. 1
1 (1917) A. I. R. AUahahad 436.
Re Manargan, (1925) 27 Criminal Law Journal 33.
Hamilton v. Alabama (1961) 368 V. S. 52.
White v. Maryland, (1963) 373 U. S. 69.
Escobedo v. Illinois (1964) 378 V. S. 478.
Miranda v. Arizona (1966) 384 V. S. 436.
1 Pointer v. Texas 380 V. S. 400.
Premaratne v. Ounasekera, supra.
211
WEERAMANTRY, J.—Sitbramaniam v. Inspector of Police,
'Kankesanturai
V-
It is true that an accused person cannot neglect to assert his right toretain Counsel and thereafter complain at a later stage that he has nothad the opportunity of representation by Counsel. It is said that in thepresent case the accused has not merely not exercised his right to retainCounsel but has also made use of the opportunity afforded to him undersection 189 of questioning the witness concerned. It is submitted there-fore that the accused having already enjoyed the right of questioning thewitness cannot as of right demand a further opportunity for cross-examination.
It cannot be said in the present case that the accused had delayed inavailing himself of his right to retain a lawyer, for circumstances did notpermit him on his own to retain one prior to the proceedings before theMagistrate on the 10th. The failure to have a pleader appearing for himat the time the first witness made his deposition and was questioned isnot therefore a circumstance that can result in the view that the rightto be represented at that stage of the proceedings has been forfeited bydefault.
In regard to the exercise by the appellant himself of the right to questionthe witness it would not be correct to hold such questioning to be in anyway a substitute for cross-examination by a lawyer.
The advantages of representation by a trained lawyer need no elabora-tion here. No layman however well-informed and self-possessed can inthe matter of presenting his defence and safeguarding his interests bringto his benefit such resources of knowledge, training and skill as are pecu-liarly the attributes of the legal profession. Far less may a person defendhimself adequately when he is himself subject to the mental turmoil andemotional stress resulting from the pendency against him of a charge ofgrave crime, and suddenly learns that he may put questions to a witness.
I should here advert to the petitioner’s averment in his affidavit that,being 66 years of age and having spent the previous night in a police cell,he was not in a fit condition physically or mentally to cross-examineKandasamy effectively on the morning of 10th April.
In the circumstances I do not think that the questions asked by theaccused result in a loss of the statutory right to be defended by a pleader.
Learned Counsel for the Crown has submitted that the question of •recall of a witness for cross-examination is entirely one of discretion on the-part of the learned Magistrate in as much as the witness had already beentendered to the accused for questioning.
The question of recall of a witness as opposed to the tendering of awitness for cross-examination for the first time is always, he points out, amatter of discretion for a trial Judge.1 l
lWigmore on Evidence, vol. 6, section 1898.
212
WEERAMANTRY, J.—Subrammiam v. Inspector of Police,
Kcmkesanturai
Learned Crown Counsel submits that this being a matter of the exerciseof a discretion vested in the Judge, this Court would not ordinarilyinterfere in the exercise of that discretion unless that discretion has beenexercised on some wrong principle of law and should have been exerc- eiin a contrary way and in fact a miscarriage of justice has resulted. Thediscretion should in his submission be presumed to be rightly exercised.In support of these principles he cites the case of Ratnam v. Gumarasamy l.
It would appear, however, that even upon th9 basis of this submissionthere is still the need for interference by this Court inasmuch as all therequisites so specified are here present.
An examination of the reasons adduced by the Magistrate in supportof the refusal to permit cross-examination shows that they are clearlynot sustainable, and all the more so because, to judge from his order, hewould ordinarily have exercised his discretion in favour of granting theapplication.
One reason adduced by the learned Judge, as already observed, carriesthe implication that the witness had been suborned and might thereforego back on his evidence. I do not think that the fact that one witnessis thought by the learned Magistrate to have been suborned is a reasonfor presuming that all the other witnesses or at any rate the othercrucial witnesses have also been suborned.
Furthermore, it seems quite apparent that the duty of a Judge is todecide the case upon the evidence before him. If a witness should goback upon his evidence in cross-examination, a fact which th9 Magistratewill have to take into account in determining the issue before him will bethat, whatever his reason for so doing, the witness has now given analtered version. Witnesses may go back upon their evidence in conse-quence of subornation or weak-mindedness or plain untruthfulness, amongother reasons, but there is no warrant for assuming in advance the falsityof an altered version which may emerge in cross-examination or thetruth of the original version elicited in examination-in-chief. It seemsunthinkable therefore that the right to cross-examine should be deniedlest the resulting evidence will not accord with the initial version given bythe witness. Evidence both in chief and in cross-examination must beviewed in its totality if the Judge is to ascertain the truth. Indeed forthis purpose, as has so often been said, cross-examination is the mostpowerful weapon in the armoury of our legal procedure. The placing of ashield between this weapon and a witness is certainly not conducive to theascertainment of truth and may well result in entrenching falsehood.
If the Magistrate takes the view that a witness has been dishonest orhas perjured himself he will no doubt deal with him for such conduct butupon the issue before him he must decide only upon the evidence beforeturn.
1 {1986) 1 W. L. R. 8.
WEERAMAMTRY, J.—Subramaniam v. Inspector of Police,
Kankesanturai
213
It is also questionable whether the learned Magistrate had before himsufficient material on which to arrive at a finding that the witness hadbeen subjected to some illicit form of pressure. It may well be that itwas in consequence of skilful cross-examination at the hands of learnedQueen’s Counsel that the witness decided to go back upon his testimonyand unless he has very strong reasons for arriving at the conclusion ofsubornation the Magistrate would generally incline in favour of the viewthat it is the process of cross-examination rather than the use of illicitpressure which has resulted in a witness’ change of front!
Cross-examination will of course be curbed by Court if it transoendsthe limits allowed by law but within these limits the right to cross-examination cannot be denied or curtailed. It therefore seems scarcely atenable reason for denying cross-examination that it is expected to beeffective, for this is the very end and purpose of the cross-examiner’sskill.
Learned Crown Counsel submits that in considering whether there hasbeen the opportunity to cross-examine, we can derive guidance fromcases decided under section 33 of the Evidence Ordinance relating to theadmissibility of evidence given in a prior judicial proceeding. One ofthe requisites to the admissibility of such evidence is that in the formerproceeding the adverse party should have had the right and the oppor-tunity to cross-examine. In applying this section the question whetherthe right or opportunity has been effectively used is immaterial so long asthe right and opportunity did exist. Indeed even if the right andopportunity have not been used the requisites of section 33 would stillhave been satisfied. On this basis it is submitted that when we considersection 157 (3) of the Criminal Procedure Code we should considerwhether the opportunity was afforded to the accused rather than thequestion whether the opportunity was effectively used.
I do not think the analogy of section 33 holds good when testing whethersection 157 (3) has been satisfied. When applying section 33 of theEvidence Ordinance, the Court’s concern is only with the technicalrequisite that there should have been opportunity, for more than thiscan scarcely be stipulated to meet the situation which has unavoidablyarisen, of a witness being unable to depose again. In regard howeverto section 157 (3) read in relation to section 287, it is not a technicalrequisite that must be satisfied but the fundamental question whetherthe right of representation conferred by section 287 has been truly andsubstantially enjoyed.
Another reason given by the learned Magistrate, namely that no grave .prejudice will result in view of the opportunity to cross-examine in thehigher Court, does not again bear examination.
It is the right of every accused person in non-summary proceedings tohope and expect with confidence that if the evidence against him provesinsufficient to justify a committal, the Magistrate will discharge himwithout putting him through the unnecessary ordeal of trial in the higher
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MAN ICAVASAGAR, J.—Paul E. de Costa <b Sons v. Ounaralne
Court on a charge of grave crime. Where such an opportunity of dischargeby a Magistrate does exist, it would be a serious violation of the rightof the accused to deny him that'which is his right merely because thesuperior Court will undoubtedly go through the normal process of trial.Magistrates would do wed to bear in mind the long period of incarcerationand the expense and pain of mind resulting from unnecessarycommitments.
For these reasons I consider that in the circumstances of this casethe refusal by the learned Magistrate to permit cross-examination of thewitness Kandasamy by Counsel was wrong. Acting in revision Iaccordingly reverse the order of the learned Magistrate and direct thatthe witness Kandasamy be tendered for cross-examination by Counselfor the accused.
Order reversed.
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