Gtmewardene v. Gtmewardene-
Present Sansoni, J.
MUDT,R. S. C. C. GUNEWARDENE, Appellant-, and.D. J. GUNEWARDENE, Respondent .S. G. 223—M. O. Colombo South, 7S,Oil .^
Appeal—Discrepancy on a material jyoint between two certified copies of the case underappeal—Effect—Criminal procedure—Eai/ure of .Court to call -upon, accusedfor his defence—Irregularity. '. .'-
SANSONT, J.—Gunewardcite v. Gnnewardene ,
Tlic accused-appellant’s main ground of nppcnl wns that ho was not calledupon for his defence. Ho relied on an affidavit filed by the Counsel who -appeared for him at tho trial and on the certified copy of tho case which wasissued to.him on Starch 4, 1957. The certified copy, however, of tho casemade on Starch 8, 1957, for tho use of the Supreme Court contained an’entrythat the .accused’s Counsel informed the Sfagistrate that ho was not callingfor the defence. This entry did not appear in tho certified copy issued on the4th Starch. The circumstances under which the' entry in tho record appearedto have been made were certainly unusual.‘'
Held, that, in tho circumstances, the case should bo sent back for a freshtrial.:i.
-AVPPJ3AL from a judgment of the Magistrate’s Court, Colombo South.
S. Nadesan, Q.C., with JI. M. Kumarakula-iingluim and J. V. . C.Nathaniel, for the accused-appellant…'
E. B. Wikramanayake, Q.G., with G. T>. Welcome, for the complainant-respondent.'
Our. adv. vult.
September 11, 1957. Saxsoxi, J.—'
This is an appeal by an accused who was charged with having receivedrent in excess of .the authorised rent and thereby committed an offenceunder section 3 (1) of the Rent Restriction Act, No. 29 of 1948, an^lpunishable "Ander section 3 of the said Act.
The trial took place on February 12th when Mr. Christie Perera withMr. Casie Chetty appeared for the complainant and Mr. Advocate Haniffafor the accused. The complainant and one witness gave evidence andthe prosecution was closed. The trial was then adjourned to 23rdFebruary for addresses. On the adjourned date Sir. Casie Chettyappeared for the complainant and Mr. Advocate Haniffa for the accused.They both addressed the Court and order was reserved for 2nd Marchon which date the Magistrate delivered his order convicting the accusedand imposing a fine of Rs. 100.
A petition of appeal, drafted and. signed on 3rd March, was filed on4tli March at 9.15 a.m. and one of the grounds of appeal set out in thatpetition is that the accused was not called upon for his defence, and thisis the ground which formed the subject of the submissions made bycounsel for the accused-appellant. In support of the argument that theaccused was not called upon for his defence the appellant’s counsel reliedon an affidavit filed by Mr. Advocate Haniffa and the certified copy ofthe case which was issued to the accused on 4th March. . According tothat certified copy the proceedings of 23rd February were confined toaddresses by the lawyers who appeared for the complainant and theaccused respectively; the entrj' “ Mr. Haniffa is not calling evidence ”,
S.AIsSONT, J.—rGuncxcanlcnc v. Guncu-arrlcnc
which appears just prior to the notes of addresses in the record anti inthe certified copy of the ease made on Sth March for the use of this Court-,docs not appear in the certified copy issued on 4th March.'
Under these circumstances Sir. HanifFa’s affidavit is important, forin that affidavit he has stated that the Magistrate did not call for adefence. He has also stated that he did not at any stage inform theMagistrate that he was not calling evidence for the defence. When thisappeal first came before K. 3D. de Silva J. the Magistrate was askedto report on the affidavit and the absence of the entry “ Mr. Haniffa isnot calling evidence” from the certified copy issued to the accused.The Magistrate in his report has stated that it is quite possiblethat Mr. Haniffa had not specifically stated that he was not callingevidence. He has also stated that it was quite possible that he may nothave asked Mr. Haniffa whether he was calling evidence. He has ex-plained the words “ Mr. Haniffa. is not calling evidence” as being “anentry made in the normal course when further evidence is not expectedto be called. ” I must confess that I cannot understand what this state-ment means. If the Magistrate means that he makes such an entrywhen he docs not expect evidence to be led, even though no such state-ment has been made by the accused’s counsel, and no opportunity hasbeen afforded to the accused’s counsel to call evidence, it is highlyirregular for him to do so. Such an entry woidcl mislead a Court ofAppeal ; and it could work grave injustice, particularly when theMagistrate himself has commented in his order in this case on the failureof the accused to give evidence at the trial.-
But if such an entry is made merely because the Magistrate does notexpect further evidence to be called, I should have expected it to havebeen made on 3:2th February when the trial was adjourned for addresses.The question of further evidence being led or not being led did not ariseon the next date of hearing, especially as the Magistrate has stated inhis report that the case is usually adjourned for addresses when there is Jno further evidence to be recorded. The circumstances under which theentry in question appears to have been made are certainly unusual. –
The appellant's counsel also submitted that there was no substance inthe Magistrate’s explanation that the omission of the entry in the certi-tied copy issued to the accused was due to an accidental or intentionalomission on the part of (he typist. I cannot say, in the absence ofexpert testimony, that the en.try is an obvious interpolation. I thinkit would be dangerous to come to such a conclusion by merely looking atthe record. I do feel, however, that if the entry was there when thecertified copy was prepared on 2nd or 4th March it is most unlikely thatit would have been omitted from that’certified copy. The two certifiedcopies bear all the marks of having been prepared and certified with meti-culous care. The slightest correction or erasure in the copies has beeninitialled by the Ghief Clerk who certified them, and both copiesshow that they have been carefully compared with the. original andclosely scrutinised by the person who certified them. The copy issuedto the accused has as many as twenty corrections initialled by the ChiefClerk, while the copy issued for the use of this Court has thirty-six such
SANS ONI, J.—Guncwardcnc v. Guncwardcne
initialled corrections. Even if the impugned entry had been omittedby the typist from the copy prepared for issue to the accused, suchomission would nothin my view, have gone unnoticed by the Chief Clerk.
For those reasons I set aside the conviction of the accused and sendthis case back for a fresh trial before another Magistrate.
The above is the judgment which was prepared and signed by me onthe 9th instant in order that it might be delivered the next day. Onthe 10th instant I received certain papers and documents relating to thiscase, but not from either of the parties. These were shown by me to thecounsel on either side but they did not desire to take any further stepsbefore I delivered judgment. I do not think that the new materialbrought to my notice should affect my judgment in anj- way, since it hasnot come before me in any of the recognized ways by which evidence istendered. My judgment has therefore been delivered as it stood on the9th instant.■
Sent bach for a fresh trial.
MUDLR. S. C. C. GUNEWARDENE, Appellant, and D. J. GUNEWARDENE, Respondent
Gtmewardene v. Gtmewardene-