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Present Mr. Justice Wendt and Mr. Justice Grenier.BEX v. RAHIMAN et al.
P. G. Mannar, 2,705.
Depositionaswitness—Proof of deposition-r—Admissibility on trialof
witness for the sameoffence—Confession—EvidenceOrdinance,
s. 139—Criminal Procedure Code, ss. 165 , 996, and 309.
M £i was examined as a witness- in a case in which one A Rwas charged with certain offences, and gave evidence implicatinghimself and A B. Subsequently, M L was made an 'accused in thesame case and the deposition made by him as a 'Witness was readin evidence at his trial.
Held, that the deposition was rightly admitted in evidence undersection 139 of the Evidence Ordinance.
Held', also, that it was unnecessary to call the Police magistrateto prove the deposition.
Crown Case Reserved.
TTF, case stated by Wood Renton J., for the consideration ofthe Court was as follows:—
“At the Colombo Criminal Sessions, held before me on17th instant, two men, Abdul Rahiman and Mira Lebbe, with threeothers whose names are immaterial, were tried on charges of criminaltrespass, robbery, voluntary infliction of hurt, and—as an alter-native to the charge of robbery—abetment of robbery.
The jury unanimously convicted both prisoners of criminaltrespass and robbery. I withdrew from the jury the charge of abet-ment.
In support of the charges against Mira Lebbe, the Crowntendered in evidence a deposition given by him before the PoliceCourt of Mannar held at Marichchukaddi, in which he clearly im-plicated both himself and Abdul Rahiman. . At the time when thedeposition was given, Abdul Rahiman was actually charged withthe offences in question. There was then no charge against MiraLebbe; he can?e forward voluntarily and, after having been dulyaffirmed, gave evidence in the Police Court proceedings. His de-position purports to have been signed by him, after it had been readover to him in the presence of Abdul Rahiman, the accused. More-over, the record shows that the witness Mira Lebbe was cross-examined by Abdul Rahiman on that very deposition. I should addthat Mira Lebbe’s deposition was offered by the Crown as evidenceagainst himself alone, and that I directed the jury to exclude it fromtheir consideration in dealing with the case against Abtjul Rahiman.
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1B0S.4. Mr. Senathi Rajah, counsel for Mira Lebbe and Abdul Rahi-
October 31 man, objected to the admission of this evidence upon any ground; andV ~dtamd conten<*ed, further, that, even if it were admissible, it was necessarythat the Police Magistrate, before whom it was taken, should be
J.J- called as a witness for the purpose of proving that Mira Lebbe’sstatements were made in the presence of the accused.
In support of his first contention (that the deposition was en-tirely inadmissible) Mr. Senathi Rajah referred to section 155 of theCriminal Procedure Ordinance, which prescribes the steps to betaken where a magistrate receives a statement from an accusedperson, and section 33 of the Evidence Ordinance, which defines thecircumstances that make evidence given by a witness in a formerjudicial proceeding relevant when such witness is not available insubsequent judicial proceedings.
I held that these sections had no bearing on the present case,where the question at issue was the admissibility of a statement made,not by an accused person, but by a witness who in the subsequentjudicial proceedings in which it is tendered is an “ accused person,”and I admitted the evidence under section 132 of the Evidence Ordi-nance, as interpreted in R. v. Gadermen (1), R. v. Qopal Doss (2),Queen Empress v. Gcmu Sonba (3), Queen Empress v. Sami Appa (4).In this last case the previous judicial proceedings were criminal andnot civil, so that it presents a complete analogy to- the present case.
In support of this alternative contention (that the magistrateought to have been called to prove that Mira Lebbe’s deposition wasmade in the presence of Abdul Rahiman), Mr. Senathi Rajah citedsection 80 of the Evidence Ordinance, and the following Indianauthorities: Queen Empress v. Biding (5), Queen Empress v. PophSingh (6), Kachali Hari v. Queen Empress (7).
I held that, even if these authorities did, as they do not, relateto the admission of depositions under section 132 of the Evi-dence Ordinance, they show that the deposition of Mira Lebbe wasadmissible without any necessity for the magistrate being called as awitness. The evidence was admitted against Mira Lebbe alone; and,even assuming that it was admissible against Abdul Rahiman. itappeared on the face of the record that he not only was presentwhen it was given, but had subjected it to cross-examination.
The questions for the- consideration of the Full Court arethese:.—
(1) Was I right in holding that the deposition referred to inparagraph 3 was admissible?
6 N. L. R. 67.
I. L. R. 3 Mad. 271.
I. L. R. i2 Boot. 440.
I. L. R. 15 Mad. 63.
1. L. R. 9 All. 720.
I. L. R. 10 All. 174.(7) I. L. R. 18 Cal. 129.
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(2) Was I right in holding that it was unnecessary, under the
circumstances stated in paragraph 3, that the Police Magis- Oetobtr 31trate should be called as a witness? ’
Senathi Rajah, for the accused.
Van Langenberg, A. S.-G., for the Crown.
Cut. adv. vuli.
31st October, 1905. The Court (Wendt and Grenier JJ.), deli-vered the following judgment:—
The facts material to the decision of the two questions which havebeen submitted for our consideration are fully stated in the case re-served by Mr. Justice Wood Renton. The first question is whetherthe learned Judge was right in holding that the deposition referredto in paragraph 3 was admissible?. The deposition was made by theprisoner Mira Lebbe, and the Crown tendered it in evidence againsthim. The prisoner’s counsel objected to the admission of this evidenceupon any ground. We are of opinion that the deposition was rightlyadmitted under section 132 of the Evidence Ordinance as interpretedin the cases cited by the learned Judge in the case reserved.
The argument before us by the learned counsel for the appellantproceeded on the erroneous assumption that the deposition made byMira Lebbe was in the nature of a confession by an accused person,and that the magistrate had not followed the procedure prescribedin section 155 of the Criminal Procedure Code. That section refersto statements made by an accused person who is brought before thePolice Court charged with an offence triable by a higher Court. Section155 requires the magistrate to state to the accused the nature of theoffence of which he is accused,' giving such particulars as are necessaryto explain the same, and to address him in certain words which areset out in the section. By sub-section 2 of section 155 any statementmade by the accused shall be recorded in maimer provided by section302, which requires that after the statement has been duly recorded,the magistrate shall certify under his own hand that it was taken inhis presence and hearing, and contains accurately the whole of thestatement or examination of the accused. Sub-section 3 of section 302requires that the accused shall sign or attest by his mark such state-ment or examination, and in the event of his refusing to do so themagistrate shall record such refusal.
Now, the proceedings in the Police Court show that Mira Lebbeappeared before the magistrate before any charge was made againsthim, and voluntarily, without the slightest attempt at compulsion onthe part of the Court, gave evidence implicating both himself and theprisoner Abdul Rahiman. As found by the learned Judge—and the
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1#06. record fully supports his finding—at the time that Mira Lebbe madepctober 31. his deposition as a witness, Abdul Rabiman was actually chargedWbndt and with the offences in question, and he cross-examined Mira LebbeGbbnieb J.J. just jn tije 8ame way an accused person would cross-examine anywitness for the prosecution. At this stage, although Mira Lebbehad made certain statements implicating himself, he was not madean accused, but was regarded as a witness who had come forwardvoluntarily to give evidence for the prosecution. He was made anaccused at a much later stage. The deposition of Mira Lebbe yrasproperly recorded by the magistrate. It was signed by him andread over to him in the presence of Abdul Rahiman; the only accusedthen before the Court, and the requirements of the Criminal Proce-dure Code so far aB they relate to the manner in which the depo-sition of a witness should be taken have been fully complied with(see section 298). Such being the case, it was unnecessary for theCrown to call the Police Magistrate as a witness in order to provethat Mira Lebbe’s depositions were properly taken. This disposesof the second question reserved for our consideration.
In our opinion the learned Judge ruled rightly on both thequestions reserved, and the conviction must therefore be affirmed.
REX v. RAHIMAN et al