REX v. RAHIMAN et al.

Present : Mr. Justice Wendt and Mr. Justice Grenier.

REX v. RAHIMAN et al.

P. C., Mannar, 2,705.

Deposition as witness-Proof of deposition-Admissibility on trail of witness for the same offence-Confession-Evidence Ordinance, s. 132-Criminal Procedure Code, ss. 155, 298, and 302.

M L was examined as a witness in a case in which one A R was charged with certain offences, and gave evidence implicating himself and A R. Subsequently, M L was made an accused in the same case and the deposition made by him as a witness was read in evidence at Us trial.

Held, that the deposition was rightly admitted in evidence under section 132 of the Evidence Ordinance.

Held, also, that it was unnecessary to call the Police Magistrate to prove the deposition.

CROWN CASE RESERVED.

THE case stated by WOOD RENTON J., for the consideration of the Court was as follows: -

1. "At the Colombo Criminal Sessions, held before me on 17th instant, two men, Abdul Rahiman and Mira Lebbe, with three others whose names are immaterial, were tried on charges of criminal trespass, robbery, voluntary infliction of hurt, and-as an alter native to the charge of robbery-abetment of robbery.

2. The jury unanimously convicted both prisoners of criminal trespass and robbery. I withdrew from the jury the charge of abetment.

3. In support of the charges against Mira Lebbe, the Crown tendered in evidence a deposition given by him before the Police Court of Mannar held at Marichchukaddi, in which he clearly implicated both himself and Abdul Rahiman. At the time when the  deposition was given, Abdul Rahiman was actually charged with the offences in question. There was then no charge against Mira Lebbe; he came forward voluntarily and, after having been duly affirmed, gave evidence in the Police Court proceedings. His deposition purports to have been signed by him, after it had been read over to him in the presence of Abdul Rahiman, the accused. Moreover, the record shows that the witness Mira Lebbe was cross-examined by Abdul Rahiman on that very deposition. I should add that Mira Lebbe's deposition was offered by the Crown as evidence against himself alone, and that I directed the jury to exclude it from their consideration in dealing with the case against Abdul Rahiman.

4. Mr. Senathi Rajah, counsel for Mira Lebbe and Abdul Rahiman, objected to the admission of this evidence upon any ground; and contended, further, that, even if it were admissible, it was necessary that the Police Magistrate, before whom it was taken, should be called as a witness for the purpose of proving that Mira Lebbe's statements were made in the presence of the accused.

5. In support of his first contention (that the deposition was entirely inadmissible) Mr. Senathi Rajah referred to section 155 of the Criminal Procedure Ordinance, which prescribes the steps to be taken where a magistrate receives a statement from an accused person, and section 33 of the Evidence Ordinance, which defines the circumstances that make evidence given by a witness in a former judicial proceeding relevant when such witness is not available in subsequent judicial proceedings.

6. I held that these sections had no bearing on the present case, where the question at issue was the admissibility of a statement made, not by an accused person, but by a witness who in the subsequent judicial proceedings in which it is tendered is an " accused person," and I admitted the evidence under section 132 of the Evidence Ordinance, as interpreted in B. v. Cadermen(1), B. v. Gopal Doss(2), Queen Empress v. Ganu Sonba(3), Queen Empress v. Sami Appa(4). In this last case the previous judicial proceedings were criminal and not civil, so that it presents a complete analogy to the present case.

7. In support of this alternative contention (that the magistrate ought to have been called to prove that Mira Lebbe's deposition was made in the presence of Abdul Rahiman), Mr. S

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