King V. Charles

 

[COURT OF CRIMINAL APPEAL.]

 

1941       Present : Howard C J. Soertsz and de
Kretser JJ.

 

THE KING v. CHARLES

 

54-M. C. Balangoda, 30,008.

 

Evidence-Witness called by the Judge after close of defence-Right of Crown or Judge to call such evidence-Irregularity-No prejudice to accused- Criminal Procedure.

 

The right of the Crown or the Judge to call fresh evidence after the  close of the case for the defence is limited to something arising ex improvise.

 

Where a Judge has committed an irregularity in calling a witness after the close of the defence and no prejudice has been caused to the defence the conviction will not be set aside.

 

THIS was an application for leave to appeal from a conviction before a Judge and Jury.

 

J. L. M. Fernando, for the applicant.-The proceedings in this case are vitiated by two serious irregularities, viz.: (1) the presiding Judge called a witness for the prosecution after the case for the prosecution and the defence had been closed; (2) the Judge called another witness for the prosecution in the middle of his summing-up and put certain questions to her.

 

Any new evidence called by the Court after the case has been closed should not prejudce the accused. This is how section 429 of the Criminal Procedure Code has been construed. The discretion given to the Judge by that section should not be exercised in a manner prejudicial to the accused-Vandendriesen v. Howwa Umma1 In India, under the corre­sponding section 540, it was held that the power conferred on the Judge by that section is very wide, but the wider the power, the more cautious should be the exercise of discretion on the part of the Judge. See Natabar Ghose2; Gulzari Lal v. Emperor3. Relevant English cases are Harold Day 4 and Dora Harris5.

 

[COURT.-Is there no case in which new evidence was called on the request of the Jury?]

 

There is none. Section 429, Criminal Procedure Code, gives no power to the jury to ask for further evidence. In the present case, the additional evidence was not led to meet a situation which had arisen ex improvise ; it, in fact, made the jury decide, in favour of the prosecution, a point on which they had previously been doubtful.

 

E. H. T. Gunasekera, C.C., for the Crown, was not called upon.

 

July 28, 1941. HOWARD C.J.-

 

In this application Mr. Fernando has" taken three points. The first point is that the learned Judge called a witness after the cases for the prosecution and the defence had been closed. The second point is that

 

1 (1937) 9 C. L. W. 17.
 2 (1922) 24 Cr. L. J. 957.
3 (7922) 24 Cr. L. J. 3.

4 27 Cr. Apr,. R. 168.

5  20 Cr. App. R. 86.

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