056-NLR-NLR-V-18-THE-KING-v.-PETTA-et-al.pdf
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Present: Pereira J.THE SING v. PETTA et at.
1—6—D.C. {Grim.) Anurudhapum, 611•
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Appeal—Right of appellant to reply—Offontfud Procedure Code, e, J$84 (1).
Under section 834 (1) of the Criminal Procedure Code the appellantin a criminal ease has no right, in the course of the argumentof the appeal, to address the Court in reply to the respondent.
I
N this case, after counsel for the appellant had argued the appealcm the facts, counsel for the Crown (respondent) was called upon.
The counsel for the appellant then claimed a right to be heard in replyto tiie respondent.
E. W. Jayetvardme, for the first, second, third, fifth, and sixthappellants.—Counsel for the1 appellant has a right to be heard inreply. Under the old Criminal Procedure Code of 1888 it wasspecially enacted that the appellant has no right of reply. But thenew Code omitted the words. ^ Clearly the intention was to removethe disability. It is but right that appellant should have the rightto meet any new point which counsel for the respondent may raise.In India it has been held that counsel fear appellant* has a right to beheard in reply. Counsel referred to 38 Cal. 907.
Grenier, Acting G.C., for the Crown.
Oar. ado. vtdt.
February 11, 1915. Pebbiba J.—
I have read the evidence in this case carefully, and X think .thatit well supports the verdict of the District Judge. The fact that thecomplainant did not promptly mention to the headman the namesof tiie accused when he made his complaint to him is, I think,sufficiently accounted for by him.
A question of procedure arose in the course of the argument,namely, whether the appellant in a criminal appeal was entitled toaddress the Court in reply to the respondent. Although I shouldhave heard Mr. Jayewardene if I thought that a new point had beenpressed by (he respondent's counsel, Mr. Jayewardene himself, as Ifelt, was not so anxious to be heard in reply in this particular caseas to obtain a ruling on the question of procedure involved. I haveno hesitation in saying (hat under section 344 (1) of the CriminalProcedure Code the appellant is not entitled to the privilege claimed,aqd I think that the section has been so understood since the passing
1915.
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1916.
Pbkbxra J,
The Kingv, Petta
ci the Code. The section enacts that the appellant shall be 11 firstheard in support of the appeal,” and that “ then the respondent,if present, shall be heard against it. ” The use of the words “ first ”and " then ” are significant, implying that it is when the Court hasdone with the hearing of the appellant that it should hear the otherside. In (he old Criminal Procedure Code it was expressly providedas follows: ” but the appellant shall have no right of reply butapparently these words were found to ba superfluous in view of theplain meaning conveyed by the words already used in the section,and were omitted in the new Code. When the Legislature hasintended that an appellant should have a right of reply, it hasexpressly given hi™ that right. See, for example, section 769 of theCivil Procedure Code. I have been referred to certain decisions ofthe .Indian Courts, which I have not had the opportunity of examin-ing, to the effect that in a criminal case the appellant has a right ofreply. I shall assume that the effect of the decisions referred toabove is as contended for by the appellant's counsel, but they arebased on a section of the Indian Code of Criminal Procedure theterms of which are quite different from those cited above.
I dismiss the appeal.
Appeal dismissed.
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