090-NLR-NLR-V-49-SIVARAJASINGHAM-Appellant-and-S.-I.-POLICE-POINT-PEDRO-Respondent.pdf
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Sivarajasingham v. S. I. Police, Point Pedro.
1948Present: Windham J.SIVARAJASINGHAM, Appellant, and S. I. POLICE ,POINT PEDRO, Respondent.S. C. 1,361—M. C. Point Pedro, 9,681.
Criminal Procedure Code—Application for adjournment—Absence of witness—Attentionof Magistrate not directed to whether reasonable efforts were made—No reasonsfor refusal—Re-trial—-Section 289.
The accused in this case applied for a postponement in order to call a doctorto testify to his injuries. This application was refused by the Magistrate.There was nothing on the record to show that the Magistrate had directed- his attention to the question whether reasonable efforts had been made tocall the-witness.
Held, that this was sufficient ground for re-trial.
Held, further, that under section 289 (3) of the Criminal Procedure Codean order refusing a postponement must contain a written statement of thereasons for such order.
WINDHAM J.—Sivarajaeingham ». S. I. Police, Point Pedro.
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y^PPEAL from a judgment of the Magistrate, Point Pedro.
L. Pereira, K.C., with H. W. Tambiah and S. Sharvananda,for the appellant
Arthur Keuneman, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
April 21, 1948. WikdSam J.—
The appellant was convicted under section 316 of the Penal Codewith having oaused grievous hurt to a wcman with a olub, and wassentenced to six months’ rigorous impriscnment. The injuries to thecomplainant were not disputed, and it was also uncontested that theappellant, upon being arrested four days after the assault upcn thewoman, was himself found to have sustained considerable injuries.The appellant’s defence was that the injuries were oaused to him bya number of persons who assaulted him with clubs in front of thecomplainant’s house at the time when the ocmplainant received herinjuries. He denied having assualted the complainant.
At an early stage of the trial the appellant asked for an adjournmentto oall a doctor to testify to his injuries. The application was refusedThe following brief entry appears in the learned Magistrate’s recordafter the conclusion of the evidenoe of the first prosecution witnessa doctor, who apparently had not examined the injuries on theappellant:—“ Mr. Kulaveerasingham moves for a date to call thedootor to speak to the injuries on accused. I refuse the date.” Thesole point seriously urged in this appeal is that the learned Magistrateerred in refusing the adjournment without recording any reasons forhis refusal. In his judgment he rejects the stroy of the appellant,and one of the reasons he gives for rejecting it is that'—“ there is noevidenoe as to the age of the injuries on the accused ”. He goeson to say that “they appear to be recent”. His judgment wasdelivered four weeks after the date of the assault on the ocmplainant.It is not clear what the learned Magistrate meant by “ recent ” ; butit may well be that he meant that they appeared to have been reoeivedafter the date of the assault on the complainant, otherwise it is hard tosee the relevance of his observation. And if that is. what he meant,then the faot of the appellant having brought no medical evidenoe toshow that they had been, or could have been, sustained on the dateof the assault on the oomplainant may well have been a determiningfactor in the Magistrate’s rejection of the appellant’s story of aconcerted assault upon him during the course of which the complainantmight have reoeived her injuries.
But, as we have seen, the appellant had applied to oall suohevidenoe and the Magistrate had rejeoted his application withoutreasons given. In these ciroumstanoes it is urged that the caseshould be remitted for retrial, so as to allow the appellant to callsuch evidence, v Seotion 289 (5) of the Criminal Procedure Code isrelied on. That sub-section provides that no adjournment shall be
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Kandiah v. Ramalingam.
allowed on the ground of the absence of a witness unless the. Magis-trate has satisfied himself that the evidence of such witness iB material,and that reasonable efforts have been made to secure his attendance.Now this is not striotly the same proposition as the proposition thatno adjournment shall be refused where the Magistrate has satisfiedhimself that the evidence is material and that reasonable efforts havebeen made. At the same time section 289 (5) has been construed,reasonably if I may say so with respect, to imply" the latter meaning,in a similar case, in Perera v. Perera1, where Howard C-J.,after referring to the two requirements of seotion 289 (5), concludedby holding that—“ It therefore seems to me that both these conditionsexisted, and in such oircumstanpes an adjournment should have beengranted. ”
In the present oase, while from the Magistrate’s own judgment themedical evidence sought to be called would seem to have been relevant,there is nothing on the reoord to show, one way or the other, whetherreasonable efforts had been made to secure the medical witness’sattendance before trial. But this very absence from the reoord ofanything to show that the learned Magistrate had directed his attentionto the question whether reasonable efforts had been made, is inmy view a good ground for allowing this appeal and remitting the casefor retrial. For it does not follow, from the silence of the Magistrate’sreoord on the point, that the appellant could not have shown that hehad made reasonable eflorts, if the necessity for his showing this hadbeen pointed out to him. I am further of opinion, after due con-sideration of the point, that the requirement of section 289 (3) of theCriminal Procedure Code, whereby every Magistrate’s order underthat section must contain a written statement of the reasons for suohorder, applies not only to an order postponing or adjourningproceedings, but to an order refusing to postpone or adjournproceedings. This equally, in my view, is an order “ under thisseotion ”, and it would be prevarication to argue that beoause it wasan order refusing to act under the section (i.e., refusing to postponeor adjourn) it could nor logically be held to be an order under thesection.
For these reasons I allow the appeal, set aside the oonviction andsentence, and remit the case to be re-tried by another Magistrate.
Send back for re-trial.