WUEYEWARDENE J.—The King v. Jayewardene.
1947Present: Wijeyewardene J.
THE KING v. JAYEWARDENE et al.
S. C. 5—M. C. Horana, 945.
Criminal Procedure Code, ss. 151 (1), 297—Evidence given by witness before issueof process—Can be read over to accused at stage of inquiry.
Section 297 of the Criminal Procedure Code enables a Magistrate to readover to the accused in the presence of the witness the evidence given by thelatter under section 151 (1), proviso (ii).
ORDER made in the course of a trial before a Judge and Jury in theKalutara Assizes, Fourth Western Circuit, 1947.
Ian de Zoysa, for the accused.
A. C. Alles, G.C., for the Crown.
November 3, 1947. Wijeyewardene J.—
Two persons were indicted before me in this case. Both the accusedwere charged with committing robbery of the property of one Kumatheris.The first accused- was also charged with attempting to murder a mancalled Sethan in the course of the same transaction
The non-summary proceedings were instituted in the Magistrate’sCourt on a written report under section 148 (1) (£>) of the CriminalProcedure Code, made by a Police Officer on April 26, 1946. The same
W1JEYEWARDENE J.—The King v. Jayewardene.
day the Magistrate examined Kumatheris under section 151 (1), pro-viso (ii) of the Criminal Procedure Code and issued warrants on thetwo accused. The accused surrendered to Court on May 9, 1946. OnJuly 19, 1946, the accused were present in Court and were representedby a Proctor. Kumatheris, who was re-called that day, was furtherexamined-in-chief and cross-examined after the evidence given by himon April 26, 1946, was read over. Kumatheris died after the accusedwere committed to stand their trial in this Court.
The Counsel for the accused objects to the Crown Counsel relying onthe evidence given by Kumatheris in the Magistrate’s Court. Thatevidence, if duly recorded, would be relevant under section 33 of theEvidence Ordinance. The Counsel for the accused states that theevidence is not duly recorded as the evidence of Kumatheris given onApril 26, 1946, was merely read over on the subsequent occasion, andhe submits that the procedure adopted by the Magistrate contravenessection 157 (1) of the Criminal Procedure Code. I am unable to upholdthe contention of the defence Counsel. Section 297 of the CriminalProcedure Code enabled the Magistrate to “ read over to the accused ”in the presence of Kumatheris the evidence given by Kumatheris undersection -151 (1), proviso (ii) of the Criminal Procedure Code.
I overrule the objection of the defence Counsel.