Wijesinghe v. Mather.
Present: Soertsz A.C.J.
WIJESINGHE v. MATHER.
354—M.C. Colombo, 35,947.
Supreme Court—Powers in appeaU—Order of acquittal set aside—Right of Courtto hear evidence in defence—Courts Ordinance, s. 37 ; Criminal Pro-cedure Code, ss. 347 and 348.
Where the Supreme Court in appeal has set aside an order of acquittalentered by a Magistrate on the ground that, contrary to the opinion ofthe Magistrate, the prosecution has made out a prima facie case,—Held, that the Court has power to receive in appeal such evidenceas the accused may tender in exercise of his right of defence.
HE accused-respondent was charged with the offence of abetting
X the offence of receiving an illegal gratification by a public servant.After trial, the learned Magistrate without calling a defence acquittedthe accused. The Attorney-General appealed against this order. TheActing Chief Justice, who heard the appeal, set aside the order ofacquittal and called upon the accused for his defence. His Lordshipacceded to the request of the Counsel for the respondent that he beheard on the jurisdiction of the Court to make such an order.
H. V. Perera, K.C. (with him J. E. M. Obeyesekera, E. F. N. Gratiaenand H. W. Thambiah), for the accused, respondent.—Under section 347of the Criminal Procedure Code (Chapter 16), the Court has the power todo one of three things, after the reversal of the order of acquittal which isa final order. The Court cannot after that stage order an acquittal.As long as the accused had not the opportunity- of defending himself,an order of conviction cannot be made. The jurisdiction given undersection 348 is ancillary to that under section 347. The kind of order isnot affected. There is an inherent limitation to section 348. It doesnot confer original jurisdiction. Under this section the Court can takeevidence. There is no distinction made between the prosecution andthe defence.
[Soertsz A.C.J.—What is the purpose in the section to the referenceto Chapter XVI. ?]
The reference supports the view that the Court can take the evidence,but cannot try the accused.
[Soertsz A.C.J.—It may. mean that the evidence is taken by theMagistrate and transmitted to this Court with his opinion.]
Yes, that view .can be taken. Otherwise the Court is exercising originaljurisdiction.
[Soertsz A.C.J.—How does it prejudice the accused ?]
It cannot be said that there is any prejudice except that he has a trialand an appeal. From an abstract point of view there is prejudice. TheCode does not authorize the Court after setting aside the order of acquittalto acquit him at a later stage.
[Soertsz A.C.J.—But it is a mere pro forma setting aside.]
But the setting aside is effective. The power 'given to the AppealCourt must be construed strictly. The Court cannot exercise original40/38
SOERTSZ A.C.J.—Wijesinghe v. Mather.
jurisdiction, section 37 of the Courts Ordinance (Chapter 6), does notempower the Court to compel a person to give evidence unless he hadbeen tendered by_ either party.
[Soertsz A.C.J.—I do not intend to compel you to give evidence.]
The words “ additional to, or supplementary of ” indicates that a partyhas already given evidence or has had the opportunity of giving evidence.
[Soertsz A.C.J.—Does it not mean additional to evidence in thewhole case ?]
Yes, if it is necessary in the interests of justice.
In Ex parte Jacobson, In re Pincoffs *, a distinction is drawn betweenthe additional evidence led in the Appellate Court according as thewitness had an opportunity in the lower Court or not. It was held inAmison v. Smith2 that where a party was not given an opportunity,his evidence could not be regarded as additional evidence.
J. W. R. lllangakoon, K.C., A.-G. (with him D. Jansze, C.C.), forcomplainant, appellant.—The Supreme Court has the power to allow aperson to tender evidence, if he so desires. The powers are wide andcannot be limited. The language of section 348 enables the Court toreceive any evidence which the party is willing to tender. See In reNarayana Menon’. The discretion is in the Court whether it shouldorder a retrial or call evidence.
Cur. adv. vult.
August 10, 1939. Soertsz A.C.J.—
The .order I made on this appeal was made after careful examinationof the nature and extent of the jurisdiction conferred on an AppellateTribunal by section 37 of .the Courts Ordinance and sections 347 and 348of the Criminal Procedure Code. But, as a matter of grace, and againstthe possibility of some point in those sections having escaped my atten-tion, I acceded to the request of Counsel for the respondent that he beheard on this question of jurisdiction.
I have now heard him and I have considered the submissions he made,but I see no reason whatever for taking a different view of thte scope ofthe sections I have referred to, or for doubting the validity or theexpediency of the order I made.
Sections 347 and 348 of the Criminal Procedure Code provide thevarious orders that an Appeal Court may make in an appeal from anacquittal or conviction, and give it a wide discretion in regard to thecalling for, or procuring of any additional or supplementary evidencethat it thinks to be necessary for disposing of the case. It may itselftake the additional 'evidence it deems necessary, or it may direct someother judicial officer to take it and transmit it with his opinion on it,or it may remit the case for further inquiry with a view to committing itfor trial, or for a retrial. As Wallace J. observed in the case of NarayanaMenon1, to which the learned Attorney-General referred me, “ whetherthe proper course is a retrial or taking further evidence is a matter ofdiscretion—the discretion of the Court apart from what the appellant orthe prosecution -may desire ”. Mr. Pe'rera contended that there is1 (1882) 22 Ch. D. 312.* 25 Gr. Laic Jrd. Rep. 401 at 406.
a (1889) 41 Ch. D. 98.4 25 On Law Jnl. Rep. 401.
SOERTSZ A.C.J.—Wijesinghe v. Mather.
inherent in these sections a limitation of the kind of evidence that may betaken by virtue of them, and he submits that it is only such evidence thatan Appeal Court is entitled to require to be taken, that it may call for andtake under these sections, and not such evidence as may be at the optionof a party to tender or not. In the Indian case just referred to, Odgers J.commented on a similar submission made in that case as follows : “ it willbe observed that in neither of the cases just mentioned it is stated or evensuggested that section 428 (i.e., the Indian equivalent of our section 348)is confined to supplying proof of the prosecution case. On the otherhand, the learned Prosecutor draws our attention to several recent casesof this Court in which evidence for the defence has been taken under theprovisions of this section apparently without the jurisdiction ever beingquestioned …. I am not prepared . .' . . to limit theambit of section 428 ”.
I would add that my order does not imply that I require the respondentto enter upon a defence or that I call upon him to tender evidence. Allit implies is that I am prepared to take such evidence as the respondentmay desire to tender in exercise of the right given to him by law, beforeI decide upon the whole case, my view at present being that the prosecu-tion has. made out a prima facie case. In other words, the position isjust the same as it would have been if the Magistrate came to the conclu-sion that a prima facie case had been established against the respondentand had called upon him for his defence. The implication of such acourse is that the Magistrate thinks additional evidence necessary—if itis available—for the disposal of the case, consistently with the rights andinterests of the prosecution and of the defence. A priori, there appearsto be no good reason why an Appeal Court should not—once it decides toreverse an order of acquittal entered at the stage at which it was madein this case—be in the position in which the Magistrate would have beenif he had taken the view which, in the opinion of the Appeal Court,he should have taken. Nor can I see in the wording of these sectionsanything to suggest that that antecedent probability has ben negatived,and that an Appeal Court may not intimate to an accused-respondentthat it is prepared to take such evidence as may be tendered.
So far as I can see, the only limits to the discretion given by thesesections are such .as an Appellate Tribunal may impose upon itself inexercising the discretion, paying due regard to the rights and interestsof the parties and to general convenience and expediency.
The more I examine'this case, the more I am convinced that the courseI propose to take is the best and most convenient course. The case forthe prosecution has been closed, and all its evidence is before me. Toorder a retrial by the same Magistrate or by another, will mean anunprofitable expenditure of time, with no conceivable legitimate benefitlikely to accrue to the respondent. To send the case back to theMagistrate who tried the case to take any evidence that the defencemay wish to tender and to transmit such evidence to me with his opinion'on it, would be a roundabout way of doing what I myself can do directlyby calling for such evidence as the respondent , may ’desire to adduce.Moreover, there is no point in asking the Magistrate for his opinion.He has already expressed it.
SOERTSZ A.C.J.—Perumal v. Arumogam.
For these reasons, the order made by me will stand and the case will becalled on August 25, 1939, at 11 a.m., for the defence to place its casebefore me.
Cite proctors Kadirgamar and de Silva to be present on that day,at that time, in case it becomes necessary to examine them further.
WIJESINGHE v. MATHER