081-NLR-NLR-V-17-KING-v.-DORISAMY-et-al.pdf
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Present: Pereira J.
1914.
KING v. DORISAMY et ah
64, 66—D, G. (Grim.) Chilaw, 3,111.
Proceedings quashed ab initio—No hat to re-prosecution—Evidence. should be recorded afresh.
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Where proceedings are quashed ab initio" there is no* bar to theaccused .being re-prosecuted for the offences with which he wascharged at the first trial.
Where proceedings were quashed 06 initio and the accused isre-prosecuted, it is not enough to get the witnesses to swear tothe correctness of the evidence recorded at the first trial and thensubmit them for further examination.fJVHE facts appear from the judgment.
Bavta, K.C., (with him H. Fernando), for the accused, appel-lants.—The proceedings were quashed when the case came up inappeal on the last, occasion, and there was no direction for a re-trial.That amounted to an acquittal of the accused. The re-prosecutionwas illegal.
The District Judge was not entitled to read out the evidencerecorded at the previous trial, to get the witnesses to swear- to thecorrectness of that evidence, and merely submit the | witnesses forfurther cross-examination and re-examination. Silva v, Gooray.1
Gooray, Acting G.C., for the Crown.—The proceedings werequashed in appeal altogether, and it is open to the Crown to trythe accused again.
The evidence was read out subject to the express consent of thecounsel for the accused. The witness admitted the correctness ofthe evidence as it was read out. That is tantamount to the witnessesdeposing to the facts over again. There has been no prejudice tothe accused by the procedure adopted.
Cur. adv. vult.
May 12, 1914. Pebeira J.—
In this case objection has been taken that, the order of thisCourt on appeal in case No. 3,111 quashing the conviction wastantamount to an acquittal. of the accused, and that .they couldnot therefore be re-prosecuted. The simple answer to this objectionis that in that case this Court quashed, not only the conviction, but
1 $ Ta/nib 64.
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1914.
PBBHUtA J.
Kingv.Dorianmy
all the proceedings ab initio in the District Court, so that there isnothing left on which an acquittal or any such order can besupported.
A further objection has been taken, which, I regret, I am obligedto xiphoid. I say I regret, because the success of the objection willnecessitate a further re-trial of the accused. The objection is thatthe witnesses have not been examined, nor has their evidence beenrecorded, as required by the • Criminal Procedure Code. As eachwitness was called, the District Judge recorded that ttfe evidencegiven by him on November 12, 1913 (that is to say, the evidence inthe quashed proceedings), was “ read over and explained and swornto by " the witness, and that .the witness was further examined,This proceeding was in contravention of tee terms of sections 2QS (2)and 298 of the Criminal Procedure Code, and was otherwise grosslyirregular. The consent to it by the accused's proctor did notvalidate it (see, on question of consent, Punchirala v, Punchi Banda,1Hami Appu v. Balappu *).
I quash the conviction and all proceedings since the presentmentof the indictment and remit tee case for a new trial. I think thatin the event of a conviction the loss suffered by the accused byreason of the nugatory trials should be taken into account in passingsentence.
Proceedings quashed.