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Present: Drieberg J.
KING t>. HEVAL.1—D. C. (Crim.) Kandy, 4,191.
District Court—Criminal trial—Reading of the depositions of toilness—Tendered for cross-examination—Criminal Procedure Code, s. 208.
A trial on indictment in the District Court must proceed on .evidence given in Court. It is irregular to read the depositions ofthe witnesses in the Police Court and to tender them for cross-examination.
^PPEAL from a conviction by the District Judge of Kandy.
De Jong, for accused, appellant.
Samaravnckretne, C.C., for the Crown.
March 14, 1929. Drieberg J.—
The appellant was charged under sections 400 and 403 of thePenal Code with cheating Gandara by obtaining from him Rs. 500on a mortgage of his land on the representation that the mortgagewas a primary one, whereas in fact it had been previously mortgagedby him to Sittamparam Chetty.
At the trial, after the Crown Advocate had opened his case, theappellant having pleaded not guilty, the following record appears :—
“ Mr. Sproule (for accused) accepts the evidence recorded in thelower Court. I tender the witnesses for cross-examination. ”
The witnesses were then called, their evidence given at the inquirywas read over to them by the Crown Advocate, and they were cross-examined by Counsel for the defence.
The defence was that as there had been no sale on the decree- obtained on the earlier mortgage, nor a realization by Gandara onhis bond, there was no proof that Gandara had in fact sustained loss,the suggestion being that the property, if sold, would realize theamount of both mortgages.
It is not necessary to consider whether this amounts to a gooddefence or not, for it is not possible to recognize these proceedingsas a trial on the indictment.
It should be remembered that the proceedings in a District Courtafter committal should be a trial by a Judge on evidence givenbefore him ; they are not proceedings in which he has to give adecision on evidence recorded in the lower Court. I need onlyrefer to section 208 of the Criminal Procedure Code, which provides
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that after prosecuting Counsel has stated his case the witnesses for
j. the prosecution shall then be examined. It is necessary that thereshould be before the Judge, in evidence given before and recordedby him, a sufficient case made out against the accused on which hecan base a judgment.
Where sufficient evidence has been led for this purpose in theopinion of the prosecuting Counsel, and where there are otherwitnesses on the indictment whose evidence is merely corroborativeand'who have not been called, it is open to the prosecution to tenderthese witnesses for cross-examination if the accused so desires.This, however, does not justify the course adppted in this case ofnot hearing or recording sufficient material to support a convictionbut merely having it tendered to the Court by the depositions of thewitnesses in the lower Court being read out.
I quite recognize that this is a case in which there was very littlepossibility, if any at all, of prejudice to the accused by the procedureadopted, and that it was done with the full consent of the Counselfor the accused, but it is not possible to disregard the requirementsof the Code, which plainly require that proceedings after committalshould be in the nature of a trial, on evidence led before the trialJudge.
The case against the appellant did not rest solely on the twomortgage bonds and the recitals in them, but also on the oralevidence of Gandara and the notary of verbal representationsmade to them, and their evidence on essential points such asthese should have been recorded.
I, therefore, set aside the proceedings and remit the case for
KING v. HEVAL