079-NLR-NLR-V-73-THE-QUEEN-v.-MOHATEEN.pdf
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The Queen v. Mohatcen
1970Present: Sirfmane, J.THE QUEEN v. MOHATEENS. C. 290/69 (2nd Northern Circuit)—M. C. Mannar, 4937‘Criminal Procedure Code—Section 290 (5) (6)—Non-summary inquiry—Deposition ofa witness—Certification by Magistrate—Omission of Magistrate to append it— •Effect.
Where) the deposition given by a witness at a non-summary inquiry does not'have, appended to it, a certificate signed by the Magistrate that the evidoncegiven by the witness before him was read over and admitted by the witnessto bo correct, as requirod by soction-299 (5) of the Criminal Procedure Code,the omission to comply with section 299 (5), by itself, is no bar to the witness’s'evidence being Jed at the trial' before the 'Supreme Court.
SIRIMANC, J.—The Queen t>. hlohateen
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OrDER ruadc.in the course of a trial before the Supremo Court.
Kumar Amarasekara, Crown Counsel, for the prosecution.
Malcolm Percra, with D. V. S. Gunasekara and .-1. V isminathan(assigned), for the defence.
August 14, 1970. SlRIMANK. J.—
Mr. Percra for the accused submits firstly, that the evidence alreadygiven by Inspector Fernando in this Court should be withdrawn from thejury, on the ground that in the Magistrate’s Court proceedings there is nocertificate signed by the Magistrate that the evidence given by theInspector before him was read over and admitted 1>3' the witness to becorrect as required by Section 299 (5) of the Criminal Procedure Code.
The inspector had given evidence on 29.3.G9 when the accused wasrepresented. At the end of tiie cxamination-in-chief Mr. Percra hadmoved for a date to cross-examine the witness after reading through theevidence given that day. This application was granted. On the nextdate, probably due to an oversight the inspector had not been called, nordoes it appear that Mr. Percra for the accused wanted to cross-examinethe witness.
Mr. Percra relics on the case of Rex v. Gee1. The facts in that case areentirely different. The witnesses had been examined by the ChiefConstable from a typed written statement, which was cheeked by theclerk and ultimately signed by the different witnesses. Nothing wastaken down by the Magistrate, and the defendants (who Mere chargedwith shop-breaking) were apparently not given an opportunity to cross-examine the witnesses either. The ijrovisions of Section 17 of theIndictable Offences Act 1S4S (then in force) which contained some-provisions similar to those in our code were completely ignored and itwas in these circumstances that the Court held that the proceedingswere so defective thattherc was no lawful committal. In the case of EdgarPurr Pontika Rooney 8 the proceedings in the lower court had taken placeon three days. In the ease of evidence of witnesses recorded on one daythere was no jurat. The Commissioner did not permit that evidence tobe led, but the appellants were convicted on the other evidence. Anapplication to quash the committal was refused. That was at the timewhen the Magistrate’s Court Rules were in operation. Mr. Percra has notbeen able to point out any provision cither in the Indictable OffencesAct or the Magistrate’s Court Rules similar to Section 299 (G) of ourCriminal Procedure Code, which provides that the absence of such acertificate should not bar even the deposition being tendered in evidenceif there is other evidence to show that the requirements of tho sectionwere in fact complied with.
■ {I03C) 2 K. Ti. D. 442.
1 (10~tS) 42 Criminal Appeal Reports 102•
•125DE KRETSER, J.—llayappnn r. A/ontcannna
In this instance the witness himself has given evidence, and when he wasin the witness box it was not suggested that the requirement had not beencomplied with. However that may be, I am of the view that the omissionto comply with Section 299 (5), by itself, is no bar to the witness’ evidencebeing led at the trial before the Supreme Court.
The second submission by Mr. Percra is that the deposition ofthe Government Analyst (which was read to the jury with his consent)should- also be withdrawn. There is no procedural omission in therecording of this evidence in the Magistrate’s Court. Mr. Percra'ssubmission that the Analyst’s evidence relates to the gun andtho cartridge produced by the Inspector, and should therefore berejected, is in my view quite untenable.•
The application is refused.
Application refused.