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THE KING 17. BANDIRALE.D. C., Chilaw, 3,692.
Criminal Procedure Code, s. 406. sub-section 4—Examination of medical
witness—Certificateofadvocate—Reasonsfor advocate's opinion
Id a case of grievous hurt, committed for trial before a Dsitrict Court,the accused's advocate certified in writing, before the commitment ofthe trial, that the medical officer who had examined the wounds inflictedshould be present to give evidence,—
Held, that the District Judge, under section 406, sub-section 4, wasbound to summon the witness, and had no right to cross-examine theadvocate as to the reasons for his certificate.
N this case of voluntarily causing grievous hurt the accusedwas convicted and sentenced to twelve months rigorous
H. J. C. Pereira, for appellant.—The conviction is bad forseveral reasons:—(1) Some weeks previous to the trial of the ac-cused the District Judge visited the scene of the alleged ofEence,called before him the parties concerned, and examined them. Aftersuch ah inquiry the District Judge could not have had an openmind to enter upon the trial. He disqualified himself from tryingthe accused. (2) The appellant’s advocate certified in writingbefore the commencement of the trial that it was in his opinion ex-pedient that the Government medical officer who had examined the
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wounds inflicted should be present to give evidence at the trial, 1002.but the District Judge ruled that the presence of the said officer September 16.was not necessary, in contravention of sub-section 4 of section 406of the Criminal Procedure Code, which gives the Judge no discre-tion in the matter. (3) The Judge was also ultra vires when heexamined the accused’s advocate as to the reasons for the certificatesigned by him. (4) The Judge admitted improperly the notes ofan inquiry made by one of the witnesses, who was the Muhandiramof the korale where the alleged offence was committed. Thiswitness was allowed to refresh his memory by referring to thesenotes, and they were produced in Court and made part of the record.
And counsel argued on the merits also.
Rdmanithan, S.-G., for the Crown.—The irregularities com-plained of have not been shown to affect the accused prejudicially.
15th September, 1902. Moncbeiff, A.C.J.—
Counsel for the appellant has taken exception to many points inthe Judge’s dealing with this matter. Amongst other things, hesays that the Judge had no right to refuse the application for asummons to the medical officer after the advocate of the accusedhad certified that his presence at the trial was necessary. Accord-ing to section 406, sub-section 4, of the Criminal Procedure Code, ifan advocate of the Supreme Court engaged for the accused in thecase certifies that the presence of the medical officer is necessary,such officer “ shall be summoned ’’ for the purpose of givingevidence in the same maimer as the other witnesses for the prosecu-tion. I think the Judge should not have cross-examined theadvocate as to the reasons for his certificate that the presence ofthe witness was necessary, and should not have adjudicated upontheir sufficiency.
It is also objected that the Judge should not have admittedthe inquirer’s notes. It appears that the inquirer made use of hisnotes when he was in the box for the purpose of refreshing hismemory, in which case section 131, sub-section 2, of the CriminalProcedure Code provides that the provisions of the CeylonEvidence Ordinance, section 161 or section 145, shall apply. I amnot aware whether circumstances arose in the case rendering theapplication of this section imperative. But I do not find that eitherin this respect, or in respect of the evidence of the medical officer,any substantial injustice was done to the accused.- The case seemsto have been proved, and I agree with the Judge that it was onewhich called for exemplary punishment. I am not disposed tointerfere.
THE KING v. BANDIRALE