070-NLR-NLR-V-63-THE-ATTORNEY-GENERAL-Appellant-and-R.-J.-DON-DAVITH-Respondent.pdf
W-EEIt A.SOORCYA, JT,—Attorney-General v. Don Davith
334
Present : Weerasooriya, J.
THE ATTORNEY-GENERAL* Appellant, and R. J. HON DAVITH,
Respondent
S.C. 645—M. C. Colombo, 173921C
Criminal Procedure Code—Absence of witness on date of trial—Applicationfor issue of warrant to compel attendance—Duty of Court to grant it—Sections 62 (2) (6), 148 (1) {b), 282.
When a prosecution witness is absent without reasonable excuse althoughserved with summons, it is the duty of the Magistrate, unless for reasons to berecorded by him he deems it unnecessary to do so, to issue a warrant to compelthe witness’s attendance, if the prosecution makes application for suck warrant.
.^^PPEAL from an order of the Magistrate’s Court, Colombo.
V. S. A. Pullenayegum, Crown Counsel, for Attorney-General,(Co mpla in ant-App el lant).
No appearance for Accused-Respondent.
March 22, 1960. Weerasooriya, J.—
This is an appeal by the Attorney-General against an order acquittingand discharging the accused-respondent. The report to Court filedunder Section 148 (1) (b) of the Criminal Procedure Code charged theaccused with the offence of voluntarily causing hurt with a sword to one-Michael Kelaart. On the summons returnable date the accused wasformally charged and he pleaded not guilty and the trial was fixed forthe 8th of June, 1959. The journal entry on that day shows that theprosecution witnesses were absent although summons had been served andthat on the prosecution officer moving for warrant on the witnesses theMagistrate refused the application without giving any reasons for doingso, and he then made order acquitting and discharging the accused.
Under Section 62 (I) (b) of the Criminal Procedure Code a Court isempowered to issue a warrant on a witness who has been duly summonedand fails without reasonable excuse to appear in terms of the summons.Section 282 of the Criminal Procedure Code also provides that—
“ if for the purpose of any inquiry or trial in a Magistrate’s Courtthe prosecutor or the accused applies to the Magistrate to issue processto compel the attendance of any witness or the production of anydocument or other thing, the Magistrate shall issue such processunless for reasons to be recorded by him he deems it unnecessaryso to do. ”
– In the present case when the prosecution witnesses were absent althoughserved with summons it seems to me that the Magistrate should haveacceded to the application of the prosecuting officer for warrants on
BASXAYAkK, C.J.—Appuhamy v. Appilsingho
335
the witnesses. No excuse whatever harl been placed before Court forthe absence of these witnesses and it is difficult in the circumstancesto think of any good reason why the Magistrate should not have issuedwarrants to compel their attendance.
The order acquitting and discharging the accused is set aside and thecase will be remitted to the Court below for the trial to be proceededwith in accordance with law before another Magistrate.
Order set aside.