137-NLR-NLR-V-24-ROWEL-v.-PERERA.pdf
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Present: Bertram C.J.
ROWEL v. PERERA385—P. C. Chilaw, 12,387
Criminal Procedure Code, 3. 189—Time-limit on cross examination andremarks—Right of pleader for defence to comment on evidenceled for prosecution.
A Magistrate has no power to impose a time-limit either oncross examination or on the remarks of pleaders.
A pleader for the defence, when opening his case, may not onlyexpound the evidence ho proposes to lead for the defence, butmay also comment on the evidence led for the prosecution.
H. J. C. Pereira, K.C. (with him Batuwantudawa and Croos-Da Brera), for appellant.
H. E. Garvin, for respondent.
August 24, 1022. Bertram C.J.—
I need not go into the facts of this case because it appears fromthe record that while the prootor for the defence was addressingthe Court for the purpose of opening his case under section 180of the Criminal Procedure Code, .the learned Magistrate, doubtless
through inexperience, having observed that it was latev and thatthe proctor had already spoken for ten minutes, directed him tofinish his remarks in one minute. The proctor, not unnaturallybeing aggrieved by this direction, informed the Court that he wasunwilling to go on with the case. The learned Magistrate refusedtc hear him further, and the proctor accordingly withdrew. Thisprocedure of the learned Magistrate cannot, of course, be justified.The Code nowhere allows the Magistrate to impose any time-limit either on cross examination or on the remarks of pleaders.I am sure that those acting as advocates will always respect requestsfrom the Bench to be as brief and concise as their duty will permit*But for a Magistrate abruptly to impose a peremptory time-limitupon the remarks of the pleader is entirely inconsistent with thespirit of the Criminal Procedure Code and the general spirit ofprocedure observed in our Courts. Mr. Garvin, who appears forthe respondent, tries to justify the order of the Magistrate byreference to nn affidavit which has been sworn by the proctor,but which I have not admitted. He says that in the affidavit1 theproctor explains that he had no time to comment on the evidencefor the prosecution. Mr. Garvin argues that in opening his casea pleader for the defenee is not entitled to comment on the evidencefor the prosecution, but must content himself with expoundingthe evidence he proposes to lead for the defence.
In my opinion this is a wholly untenable view of the effect ofsection 189 of the Criminal Procedure Code. No doubt thatsection is not in the same terms as section 211 of the CriminalProcedure Code, or of section 235 of- the same Code. The procedurein trials in Police Court differs in certain respects from that followedin trials in the District Court or Supreme Court. Nothing isexpressly said of the right of the pleader for the defence to commenton the evidence of the prosecution, but in many cases a pleadercannot effectually open his case without commenting on theevidence of the prosecution. It is impossible to believe that theCode intended to impose such an artificial restriction on advocacy.
Mr. Garvin’s contention appears to me wholly untenable. Apartfrom this, however, the learned Magistrate does not rest his orderon any such interpretation of the Code,, and I feel bound to ordera retrial of the case before uuother Magistrate.
Set aside and sent bach.