ABEYSEKERA
VS
ATTORNEY GENERAL

SUPREME COURT
GAMINI AMARATUNGA, J
SALEEM MARSOOF, PC.,J.AND
ANDREW SOMAWASA, J.
S.C. APPEAL NO. 95/2007
S.C. SPL.L.A. 162/2006
H.C. (APPEAL) NO. HAMCA. 277/2008
M.C. MALIGAKANDA 4505/C
FEBRUARY 7?, 2008

Criminal Procedure Code - Section 439 - Power to summon material witness or examine persons present- Evidence Ordinance - Section 165 - Judge's power to put questions to witness or to order the production of any document or thing in order to discover or to obtain proper proof of relevant facts - Re-trial - When can a re-trial be ordered ?
 

This is an appeal from the judgment of the High Court of the Western Province, ordering a re-trial against the accused - appellant on a charge of misappropriation of Rs. 40,000/- from an Automated Teller Machine belonging to the Hatton National Bank. The Supreme Court granted special leave to appeal on the following question of law:

"The learned High Court Judge erred In ordering a re- trial of the case, when such an order is unwarranted on the totality of evidence led by the prosecution and amounts to a miscarriage of justice ".

Held:

(1) There is no finding that the learned Magistrate's findings were perverse and that the record reveals legal evidence on which a properly directed judge could have come to a different conclusion; without such a finding a Court cannot order a re- trial.

Per Gamlnl Amaratunga, J.

"An examination of the Judgment of the High Court Judge reveals that there is no evaluation of the evidence led in the Magistrate Court and an examination of the correctness of the reasoning of the learned Magistrate which persuaded her to hold that the prosecution has failed to prove the charge beyond  reasonable doubt" .
 

(2) The provisions contained in Section 439 of the Code of Criminal Procedure Act and Section 165 of the Evidence Ordinance are provisions designed to give power to the judge to examine the witness for the purpose of ascertaining the actual facts relevant to the decision of a case. The use of a trial judge's right to have recourse to Section 439 to re-call a witness cannot be a ground to order a re-trial unless there is a finding that it has resulted In a failure of justice . There was no such finding by the learned High Court Judge.

Per Gamini Amaratunga, J. -

"A Criminal Judge's duty is to convict the guilty and acquit those whose guilt is not proved beyond reasonable doubt" .

Case referred to:

R. Vs. Barnes, 60 Dominion Law Reports 623

APPEAL from the judgment of the High Court of the Western Province sitting in Colombo.
 

D. S. Wijesinghe, P. C. with K. Molligoda for the accused - appellant.

K. M. G H. Kulatunga, S.S. C. for the Attomey General.

September 12, 2008
GAMINI AMARATUNGA, J.

This is an appeal against the judgment of the High Court of the Western Province sitting in Colombo ordering a re-trial against the accused appellant (the appellant) on a charge of misappropriation of Rs. 40,000 from an Automated  Teller Machine of the Hatton National Bank, Darley Road Branch. This Court has granted special leave to appeal on the following question of law set out in the special leave to appeal application.

"the learned High Court judge erred in ordering a re-trial of the case, when such an order is unwarranted on the totality of evidence led by the prosecution and amounts to a miscarriage of justice."

The facts relevant to the charge of misappropriating a sum of Rs. 40,000/ -from the ATM of the Hatton National Bank (HNB) Darley Road Branch, an offence punishable under section 386 of the Penal Code, are as follows: The appellant was an employee of the Darley Road Branch of the HNB and one of his duties was to monitor the operations of the ATM installed in the premises of the Bank. The ATM consisted of two parts. The upper part was the software control section and the lower part had the cash vault containing currency notes and t