027-NLR-NLR-V-71-R.A.-PREMARATNE-Appellant-and-M.-T.-GUNARATNE-Inspector-of-Police-Respond.pdf
H. N. O. FERNANDO, C.J.—Jafferjte v. Ceylon Mercantile Union
11s
.1965Present: T. S. Fernando, J.K.A. PREMARATNE, Appellant, and M. T. GUNARATNE(Inspector of Police), Respondent
S. C. 1393 of 1964—-M. C. Anuradhapura, 2985
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Criminal Procedure Code—Section 287—Postponement—Accused person's right to begiven an opportunity to retain a pleader.
On the date of trial the accused applied for a postponement on the groundthat he had not been able to get ready for trial. The application was refused. by the Magistrate in the erroneous belief that the accused was on bail andtherefore had had ample time to get ready for trial. k In fact, however, theaccused had been in Fiscal's custody in connection with another case..
Held, that the refusal of the postponement amounted to a denial of theaccused's right under section 287 of the Criminal Procedure Code to be defendedby a pleader.
1 {1967) 69 N. L. J?. 289.
14-PP 006137(98/08)
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T. S. FERNANDO, J.—Premaratne v. Qunaratnr
A.PPEAL from a judgment of the Magistrate’s Court, Anuradhapura.
G. E. Chitty, Q.C., with S. W. Jayaeuriya and E. B. Vannikmby, for theaccused-appellant.
Banjit Dheeraratne, Crown Counsel, for the Attorney-General.
Cur. adv. trull.
March 19, 1965. T. S. Fernando, J.—
The appellant has been convicted on a charge of theft of cash Rs. 26 bypicking the pocket of one Dissanayake.
Mr. Chitty appearing on his behalf at the hearing of this appealbefore me has contended that, as a result of the refusal by the learnedMagistrate who tried this case to grant the appellant’s application for apostponement of the trial to enable him to get ready therefor, theappellant has been gravely prejudiced in the presentation of his defenceand a denial of justice has occurred.
Although the appellant was first brought before the Magistrate on 6thJuly 1964 in respect of this offence alleged to have been committed on24th June 1964, he was charged only on 19th October 1964. On thislast-mentioned date, after his plea of not guilty had been recorded, theMagistrate fixed the trial for the 24th October 1964. The record madeon this date reads :—“ Accused to be on same bail ”.
On 24th October 1964 the appellant appeared in person without anypleader and the prosecution had the assistance of Mr. Delgoda, proctor.The appellant thereupon begged that a postponement be granted as hehad not been able to get ready for trial that day. The learnedMagistrate, recording that the appellant has had ample time to get readyfor trial, refused a postponement, proceeded to trial and convictedthe appellant that very day.
The record shows that the appellant did not put a single question incross-examination to any of the witnesses for the prosecution and did notgive any evidence on his own behalf at the end of the case for theprosecution.
Mr. Chitty has brought to my notice a copy of the record in M.C.Anuradhapura Case No. 5007 from which it would appear that theappellant had been arrested by the Anuradhapura Police on 19th October1964 in connection with another charge and had been ordered to beremanded till 26th October 1964. From a perusal of the record in thatcase it is quite apparent to me that the appellant was bn remand from19th October 1964 till 26th October 1964 except when his presence wasnecessary in Court for some time on 19th October and 24th October inconnection with the plea and the trial respectively in case No. 2985. When
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A min Jrai r. M. .1/. Hadji Omar d Co. Ltd.
the learned ^Magistrate recorded on 24th October 1964 in case No. 2985that tho appellant has had ample time to get ready for trial he probablyhad in mind an entry of 19th October 1964 in that case that the appellantcould stand out “on the same bail”. It is quite obvious that hisattention was not directed to the circumstance that while the appellantwas permitted to stand out on bail already furnished in connectionwith case No. 2985 he had been refused bail in case No. 5007 and wasconsequently in custody of the Fiscal.
The right of a person who is accused of a criminal offence to bedefended by a lawyer of liis choice i3 one now ingrained in the Buie ofLaw which is recognized in the law of criminal procedure of most civilizedcountries and is one expressly recognized by section 287 of our CriminalProcedure Code which enacts that “ every person accused before anycriminal court may of right be defended by a pleader ”. Although thelearned Magistrate did not expressly deny the appellant that right, it isapparent to me that, in the erroneous belief that the appellant was onbail between 19th and 24th October, his decision to go on with thetrial had the same unfortunate effect. 1 would therefore quash theconviction and sentence and order that the appellant be tried afreshon the same charge before another Magistrate.
Coat sent back for fresh trial.