Saibu and Jayasetia.
Present: Keaneman J.
SAIBU Appellant, and S. P. JAYASENA, ."Respondent.
,915—M.C. Gampaha, 19,223.
Evidence—Right ofMagistrate tocall evidenceafter thecloseofthedefence—
Evidence essential for a just decision—Criminal Procedure Code, ss. 190and 429.
Where, afterthe defencewas closed,the Magistratecalledintothe
witness box apolice officerto prove astatementmadebyone ofthe
accused’s witnesses to the Police, which contradicted his evidence,—
Held, that the evidence was admissible provided it was essential for ajust decision of the case; and that the procedure was. justified by theprovisions of sections 190 and 429 of the Criminal Procedure Code.
A PPEAB from a conviction by the Magistrate of Gampaha.
S’. p. WijewicltTeme. for accused, appellant.
Jansze, C.C. for complainant, respondent.
Cur. adv. vult.
KETXNEMAN J.—Saibu and Jayasena.
February 2, 1944. Rboteman J.—
The point raised in this appeal is that the Magistrate, after the case forthe defence was closed, called into the witness bo^c a Police Officer toprcve a statement made by one of the accused’s witnesses to the Police,which contradicted his evidence. -This witness, the father-in-law of theaccused, deposed that he, and not the accused, caused the injuries, inrespect of which the accused was charged, while to the Police he statedhe did not know who stabbed, and failed to say that he stabbed. Thecross-examination of the witness was directed to this statement, whichthe witness, however, denied.
Reliance was placed by defence Counsel on the authority of WelipennaPolice v. Pinessa1, where Moseley J. decided that in the Magistrate’sCourt there was no power reserved to the prosecution to call evidence in.rebuttal. The learned Judge drew attention to section 212 and section287 (1) of the Criminal Procedure Code, where in trials before the DistrictCourt and the Supreme Court this power is reserved to the prosecution,subject to permission. There is no similar section relating to theMagistrate’s Court. With respect I agree with that decision.
But the problem here is different, for the Magistrate himself called theevidence at his own instance. Crown Counsel refers me to sections 190and 429 of the Criminal Procedure Code. Section 190, in my opinion,contemplates the calling of evidence by the Magistrate “ of his ownmotion ” even after the defence has been closed, and I think in theMagistrate’s Court it was intended that the power to call evidence underthese circumstances was to reside in the Magistrate alone, and that it wasnot- intended that the prosecution should have this power. Authorityfor the exercise of this power is provided by section 429, and it can beexercised “ at any stage of an inquiry, trial, or other proceeding ”,provided that the evidence appears to be essential to the just decision ofthe case. Under the corresponding section of the Indian CriminalProcedure Code, namely, section 540, it has been held that the Court haspower to admit rebutting evidence for the purpose of rebutting evidenceadduced on behalf of the defence, if the Court thinks it essential for thejust decision of the case; see Nayan Mandal v. The Emperor2. See alsoDaniel v. Soyza3.
■ T.n this particular case, I can see no element of unfairness in theadmission of the further evidence. The witness had been cross-examinedon the point, and the previous statement revealed. There had been noprevious indication that the witness would give any evidence of the kindhe did. This aspect of the matter has been fully discussed in The King v.Aiyadurai*. I think it can be said in this case that this was a.matterwhich arose ‘’ ex improviso ”, and that no injustice was done to theaccused by the admission of the further evidence.
The appeal is dismissed.
26 C. L. W. 72.
A. I. R. (1930) Calc. 134.
3 A. C. R. 50.
*43 N. L. R. 289.
SAIBU Appellant, and S. P. JAYASENA Respondent