AKBAR J.—Vanrooyen v. Perera.
1933Present: Akbar J.
VANROOYEN v. PERERA.
369—P. C. Colombo, 2,443.
Bias—Case depending on evidence of headman—Witness known to Magistrateas satisfactory officer—Personal knowledge.
Where the proof of a material fact, upon which the case for the pro-secution rested, depended upon the evidence of a Police Vidane, which theMagistrate accepted on account of his personal knowledge that thewitness was a satisfactory officer,—
Held, that the conviction was bad.
A witness should not be debarred from giving evidence in a PoliceCourt because he was present in Court during the hearing.
PPEAL from a conviction of the Police Magistrate of Colombo.
B. P. Peries, for appellant.
May 22, 1933. Akbar J.—
Mr. Peries who appeared for the accused has taken objection to theconviction on two or three grounds—two of them on the law and one onthe facts. I need only mention the objection taken by Mr. Peries on thelaw in view of what I propose to do with this case. The accused wasconvicted of having been in possession of three bottles of fermentedtoddy containing 30 drams without a permit. The whole case dependedon whether the three bottles were possessed exclusively by the accusedor whether he only had two bottles and the third bottle was in the pos-session of a man called Reuban. This question of fact depended, so faras the prosecution was' concerned; on the evidence of the Police Vidanethat a crowd afterwards interfered and one of the bottles was taken away.
AKBAK J.—Vanrooyen v. Perera.
The Magistrate says in his judgment: “I entirely believe the prose-cution story which has been put forward clearly and precisely. Theaccused has endeavoured to show that the Police Vidane is angry withhim for some paltry gambling, affair, and has endeavoured to throw ‘ mud ’on the Headman, who to my knowledge is quite a satisfactory officer. Idespise such habits. This is a bad case.” So that it is quite clear thatthe Magistrate has imported into the case his own knowledge of thecharacter and the degree of credibility which should be attached in thecase of the principal witness for the prosecution, viz., the Police Headman.Mr. Penes has pointed out to me the report of a case, which unfortunatelyis not obtainable here, referred to in The Law Journal, Vol. LXXV. ofApril 22, 1913, at p. 268. The question was' decided jn Curch v.Church1. The facts as stated in the Law Journal are interesting. Inthis case a wife took out a summons against her husband owing to hisalleged failure to maintain her. The wife was represented professionally,but the husband conducted his case in person. On the husband’s cross- .examination of his wife, the Chairman of the Bench stated that he knewall about the husband, and did not believe a woyd of what he said. TheChairman in granting the maximum order of £2 per week, again madecomments in regard to the husband admittedly based not on the evidence,but on personal information. Upon an appeal being preferred LordMerrivale and Langton J. delivered judgment quashing the convictionon the ground, inter alia, that there had not been a fair hearing.
The Magistrate’s knowledge of the Police Headman has created “ a reallikelihood of bias ” as stated in the case of Regina v. Rand *.
It is obvious therefore that the conviction must be set aside.
A further point was mentioned by Mr. Peries that when the accusedwished to call a witness the Magistrate did not allow him to give evidencebecause he was close to the Court during the hearing of the evidence.As to this, so far as I can find, there is nothing in the Code which prevents aperson giving evidence by reason of the fact that he was close to the Courtduring the bearing of the evidence. This would no doubt go againstthe weight of the evidence of the person concerned, but the Magistratewas I think not right in excluding this evidence.
The only difficulty I have in this case is whether I should order are-trial or wheher I should acquit the accused. He was sentenced topay a fine of Rs. 150 or in default to undergo six weeks’ rigorous impri-sonment. Pending appeal bail was fixed at Rs. 600. Apparently therewas a failure to furnish this bail and he was committed to jail becausethe petition of appeal was signed by him in prison in the presence of theWelikada prison authorities and it is dated April 27, 1933. So thathe has already undergone a part of the sentence.
I think the justice of the case requires that there should be no furthertrial.
I would acquit the accused and quash the conviction.
> (1933) 49 T. L. It. 209.
2 (1860) 35 L. J. II. C. at 158.
VANROOYEN v. PERERA