198-NLR-NLR-V-47-PITCHE-et-al-Appellants-and-RAJASURIYA-INSPECTOR-OF-POLICE-Respondent.pdf
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JAYETXLEKE J.—Pitche v. Rajasuriya.
1946Present: Jayetileke J.PITCHE et ad., Appellants, and RAJASURIYA (INSPECTOR OPPOLICE), Respondent.
729-730—M.C. Colombo, 11,949.
Criminal procedure—Issue of process—Evidence taken under Criminal ProcedureCode, s. 151 (2)—Should he recorded do novo after trial commences—Criminal Procedure Code, ss. 148 {1) (d), 151 (2), 297.
Evidence taken, under section 151 (2) of the Criminal Procedure Codeshould bo recorded de novo after the trial commences.
A
PPEAL against two convictions from the Magistrate’s Court,Colombo.
C. S. Barr Kumarakulasinghe (with him K.C. de Silva), for the accused,appellants.
S. Mahadevan, C.C., for the Attorney-General.
Cur. adv. vult.
October 24, 1946. Jayetileke J.—
The appellants were charged under section 316 of the Penal Code withhaving caused grievous hurt to one Helenahamy. They were convictedand each of them was sentenced to undergo six months rigorousimprisonment.
On 'December 27, 1945, A. J. Rajasuriya, the Detective Inspector ofPolice, Pettah, made a report to the Magistrate under sections 121 (2)and 131 of the Criminal Procedure Code and produced before him theappellants and four other persons all of whom were enlarged on bail.On January 16, 1946, Rajasuriya submitted to the Magistrate a reportunder section 148 (i) (6) of the Criminal Procedure Code. Thereupon,tho Magistrate, acting under section 151 (2) of the Criminal ProcedureCode, examined on oath Helenahamy, who was present in Court, butdid not allow the accused to cross-examine her. Thon he charged thoaccused, all of whom pleaded not guilty, and fixed tho case for trial onFebruary 11, 1946, on which date, ho recorded tho medical evidence andfixed further hearing.for February 27, 1946. On that date Helenahamywas recalled and her previous evidence was read over. Counsel for theappellants contends that, according to tho judgment of the DivisionalBench in Wilfred v. Inspector of Police 1, the evidence of Holonahamyshould have been recorded de novo. I think tho contention is sound andmust bo upheld. Chapter XVIII of the Criminal Procedure Code laysdown tho procedure to be followed when the accused pleads not guiltyto tho charge. Section 188 (2) (a) provides that tho Magistrate shall1 {1935) 46 N. L. R. 553.
DIAS J.—Paneha v. Veloo.
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proceed to try the case in manner hereinafter 'prescribed and section 189 (1)provides that when the Magistrate proceeds to try the case he shall takein manner hereinafter provided all such evidence as may be produced forthe prosecution or defence respectively. A trial commences when thecharge is read to the accused (vide The King v. Weerasamy *). In this casethe evidence of Helenahamy was recorded by the Magistrate before thecharge was read to the accused. In the absence of any provision in theCode that the recording of evidence under section 151 (2) should beregarded as part of the trial it seems to me that the evidence ofHelenahamy should have been recorded de novo.
I would set aside the convictions and sentences and send the case back,for a fresh trial before another Magistrate.
Sent back for fresh trial.