1941 present : Soertsz J.

MUSAFER  v. WIJEYSINGHE.

391-M. C. Kandy, 2,577.

Evidence in absence of accused-Reading over of depositions at trial-Witnesses not called de novo-Proviso to Criminal. Procedure Code, s.297.

On an oral complaint made to a Magistrate under section 148 0) (a) of the Criminal Procedure Code he examined certain witnesses and upon their evidence issued a warrant against the accused.

When the accused was brought up the evidence of the witnesses was read out to him and after further examination they were tendered for cross-examination.

Held, the reading over of the depositions was justified by the proviso to section 297 of the Criminal Procedure Code.

Herath v. Jabbar (41 N. L. R. 217) distinguished.

APPEAL from a conviction by the Magistrate of Kandy.

L. A. Rajapakse for the accused, appellant.

R. R. Crosette-Tambiah, C.C., for Crown, respondent.

Cur. adv. vult.

October 3, 1941. SOERTSZ J.

On the evidence adduced by the prosecution in this case the learned Magistrate could not but have held that the charge made against the appellant was established.

The only questions left for consideration are: (a) whether the conviction is vitiated, as Counsel for the appellant submits, because the evidence given by the witnesses Silva and Dharmaratne, Podinona and Tikiri Menika, on March 23, 1941, in the absence of the accused-appellant, was admitted into the case in the manner in which it was; (b) whether the Magistrate exercised his discretion wrongly when he refused an application for a postponement of the trial made on April 23, 1941 (c) whether the sentence passed by the Magistrate is excessive.

In regard to (a), the material facts are these: On March 23, 1941, S. I. Dharmaratne produced the witnesses I have named before the Magistrate at his bungalow and had their evidence recorded, and upon that evidence he obtained a search warrant to search the house concerned in the charge and a warrant for the arrest of the accused-appellant. When the case came up for trial on April 23, 1941; the evidence already given by these four witnesses in the absence of the accused was read to the accused, as each of them came into the witness-box, they were questioned further and they were tendered to the accused for cross-examination.

Counsel for the appellant contends that the reading over of the evidence given by the witnesses in the absence of the accused was irregular. He says that these witnesses should have given their evidence de novo in the presence of the accused. For this contention, Counsel relies on the

ruling in the Divisional Bench case of Herath v. Jabbar[41 N. L. R. 217.]. But in that case what was held was that evidence which could not have been recorded, in the absence of the accused, by virtue of any of the exceptions to the general rule that" all evidence taken at inquiries and trials shall be taken in the presence of the accused ", would be wrongly admitted if it were admitted by reading that evidence in the presence of the witnesses when the accused came before the Court and stood his trial. In that case, there was no exception to the general rule stated above to justify the taking of the depositions in the absence of the accused. In the present case the taking of the depositions on March 23 must be held to have been done under section 151 of the Criminal Procedure Code on an oral complaint made to the Magistrate under section 148 (a) of the Criminal Procedure Code. That this was the case is shown by the fact that after taking these depositions as he was bound to do by sub-section 2 of the proviso of section 151, the Magistrate issued warrant against the accused-appellant. Counsel also submitted that the witnesses Podinona and Tikiri Menika were not examined by the Magistrate mero motu for the purpose of the sub-section 2 of the proviso of section 151, but at the instance of the Sub-Inspector. But that, in my view, makes no d