009-NLR-NLR-V-43-MUSAFER–v.-WIJEYSINGHE.pdf
SOERTSZ J.—Musafer v. Wijeysinghe.
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1941Present: Soertsz J.
MUSAFER v. WIJEYSINGHE.391—M. C. Kandy, 2,577.
Evidence in absence of accused—Reading over of depositions at trial—Witnesses not called de novo—Proviso to Criminal Procedure Code,s. 297.
On an oral complaint made to a Magistrate under section 148 (1)(a)
of the Criminal Procedure Code he examined certain witnesses and upontheir evidence issued a warrant against the accused.
When the accused was brought up the evidence of the witnesses wasread out to him and after further examination they were tendered forcross-examination.
Held, the reading over of the depositions was justified by the provisoto section 297 of the Criminal Procedure Code.
Herath v. Jabbar (41 N. L. R. 217) distinguished.
PPEAL from a conviction by the Magistrate of Kandy.
A. Rajapakse for the accused, appellant.
R. R. Crosette-Tambiah, C.C., for Crown, respondent.
Cur. adv. vult.
October 3, 1941. Soertsz J.—
On the evidence adduced by the prosecution in this case the learnedMagistrate could not but have held that the charge made against theappellant was established.
The only questions left for consideration are :(a) whether the con-
viction is vitiated, as Counsel for the appellant submits, because theevidence given by the witnesses Silva and Dh'armaratne, Podinona andTikiri Menika, on March 23, 1941, in the absence of the accused-appellant,was admitted into the case in the manner in which it was ; (b) whetherthe Magistrate exercised his discretion wrongly when he refused anapplication for a postponement of the trial made on April 23, 1941 ;
whether the sentence passed by the Magistrate is excessive.
In regard to (a), the material facts are these :On March 23, 1941;
S. I. Dharmaratne produced the witnesses I have named before theMagistrate at his bungalow and had their evidence recorded, and uponthat evidence he obtained a search warrant to search the house concernedin the charge and a warrant for the arrest of the accused-appellant.When the case came up for trial on April 23, 1941; the evidence alreadygiven by these four witnesses in the absence of the accused was read tothe accused, as each of them came into the witness-box, they werequestioned further and they were tendered to the accused for cross-examination.
Counsel for the appellant contends that the reading over of the evidencegiven by the witnesses in the absence of the accused was irregular. Hesays that these witnesses should have given their evidence de novo in thepresence of the accused. "For this contention, Counsel relies on the
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SOERTSZ J.—Musafer v. Wijeystnghe.
ruling in the Divisional Bench case of Herath v. JabbarBut in thatcase what was held was that evidence which could not have been recorded,in the absence of the accused,'by virtue of any of the exceptions to thegeneral rule that “ all evidence taken at inquiries and trials shall betaken in the presence of the accused ”, would be wrongly admitted if ftwere admitted by reading that evidence in the presence of the witnesseswhen the accused came before the Court and stood his trial. In thatcase, there was no exception to the general rule stated above to justifythe taking of the depositions in the absence of the accused. In thepresent case the taking of the depositions on March 23 must be held tohave been done under section 151 of the Criminal Procedure Code on anoral complaint made to the Magistrate under section 148 (a) of theCriminal Procedure Code. That this was the case is shown by the factthat after taking these depositions as he was bound to do by sub-section 2of the proviso of section 151, the Magistrate issued warrant against theaccused-appellant. Counsel also submitted that the witnesses Podinonaand Tikiri Menika were not examined by the Magistrate mero motufor the purpose of the sub-section 2 of the proviso of section 151, butat the instance of the Sub-Inspector. But that, in my view,' makes nodifference. When the Magistrate entertained that application, it mustbe assumed that he entertained it because he agreed that they werematerial witnesses.
The fact that on March 24, 1941, the Sub-Inspector of Police filed awritten plaint presumably under Section 148 (b) of the Criminal ProcedureCode does not eliminate the oral complaint made through the fourwitnesses in question. The subsequent written complaint was somethingmore than need have been done. Proceedings had already been insti-tuted. In these circumstances, the reading over of the depositions takenon March 23 is justified by the proviso to section 297 of the CriminalProcedure Code.
therefore, hold that the submission made in (a) above fails. In-cidentally, I would point out that it would have been more regular if theMagistrate before issuing a warrant in the first instance, had in terms ofsection 62 of the Criminal Procedure Code recorded his reasons for doingso. The offence was a non-cognizable offence and it is not stated to be^an offence for which a warrant may be issued in the first instance.
In regard to (b), I am quite unable to sustain the objection involvedin that submission. To hold that a postponement should have beengranted in the circumstances alleged would result in dislocation of thework of the Courts. I agree with the Magistrate that for some reason orother the accused “ was only seeking to gain time ”. I also agree withhim in regard to the conduct of Mr. Proctor Rodrigo in withdrawing fromthe case when the postponement was refused. These undersirabletactics—they are no less—are becoming somewhat frequent. I hadoccasion recently to comment on a similar incident in a case from theMagistrate’s Court at Point Pedro. Such conduct displays a lack of asense of responsibility, and perhaps it may not be possible on futureoccasions to pass it by only with a comment.
■ 41 -V. L. R. 217.
SOERTSZ J.—Candappa v. Subramaniam.
63
There remains the question of sentence. The Magistrate says that thesentence he has imposed is severer than the sentences he normally imposesin these cases, and the reason he gives for a severer sentence here is thatthe accused was carrying on this business on a large scale. That .is,certainly, a relevant fact, but as against that there is the fact that thisis the accused’s first offence, and there is nothing to show that she hadconducted this house in this manner for any length of time. In thesecircumstances, I think that the ends of justice will be met and theaccused will be sufficiently dealt with both by way of punishing her forher offence and deterring her from a similar course of conduct in thefuture if she is sentenced to pay a fine of Rs. 250 and is ordered to enterinto a recognizance in a sum of Rs. 250 with two sureties to be of goodbehaviour for a period of twelve months. If the fine is hot paid, she willsuffer rigorous imprisonment for two months. If she fails to enter intothe recognizance, she will undergo simple imprisonment for two months.If she fails to do both, the second sentence will run consecutively.
The conviction is affirmed, but the sentence is varied in the mannerindicated.
Affirmed.