Wilfred V. Inspector Of Police

1945 Present: Jayetileke and Rose JJ.

WILFRED, Appellant, and INSPECTOR OP POLICE, PANADURE,
Respondent.

379-M. C. Panadure, 35,977.

Criminal Procedure-Evidence of witness in a non-summary case-Cannot be read over when the Magistrate decides to try case summarily as District Judge-Such irregularity vitiates the trial-Criminal Procedure Code, ss. 152 (3), 297, 425.

Evidence that is recorded by a Magistrate to enable him to decide whether he should exercise jurisdiction under section 152 (3) of the Criminal Procedure Code cannot be read over when he assumes jurisdiction and tries the case. Such evidence, when adduced, has to be recorded de novo.

An infringement of the requirement of section 297 of the Criminal Procedure Code that evidence shall be taken in the presence of the accused is not a mere error, omission, or irregularity which can be cured by section 425 of the Criminal Procedure Code.

APPEAL referred by Wijeyewardene J. to a Bench of two Judges, under section 48 of the Courts Ordinance. The question submitted for decision was whether evidence that is recorded by a Magistrate to enable him to decide whether he should exercise jurisdiction under section 152 (3) of the Criminal Procedure Code can be read over when he assumes jurisdiction as District Judge and tries the case summarily.

H. W. Jayawardene (with him 6. T. Samarawickreme), for the accused, appellant.-In this case proceedings commenced before the Magistrate, under section 148 (1) (b) of the Criminal Procedure Code. The written report alleged that the accused had committed theft of a gold watch and chain valued at Rs. 750 belonging to one Soysa. The accused was produced before the Magistrate. The Magistrate first examined Soysa and then decided to try the accused summarily as Additional District Judge. He framed a charge against the accused. Soysa was recalled and his previous evidence was read over. It is submitted that this evidence is inadmissible. It is evidence which the Magistrate had no jurisdiction to record. The Magistrate, when he decided to try the accused summarily as Additional District Judge, should have commenced proceedings afresh. The evidence recorded earlier could not be imported into the trial by merely reading it over to the accused-Nair v. Yagappen 1, Dionis v. Piyoris 2, Herath v. Jabbar 3. The case of Musafer v. Wijesinghe 4 is distinguishable as in that case the accused was not present.

J. A. P. Cherubim, C.C., for the Crown.-The sole question is whether the Magistrate imported into the trial the evidence recorded earlier. The cases cited for the appellant deal with evidence recorded in the absence of the accused. In the present case the accused was in Court. The only defect is that the evidence was not signed, but that is only an

1 (1940)42 N.L.R. 185 at p. 186.                3 (1940) 41 N. L. R. 217.
2 (1942) 43 N. L. R. 236.                           4 (1941) 43 N. L. R. 61.

irregularity-Tennekoon v. Maradamuttu1. Where the accused is absent evidence recorded can be read over-section 297. By implication that can also be done when the accused is present. See The King v. Weerasamy 2. In any case English Law would apply under section 6 of the Criminal Procedure Code. Herath v. Jabbar (supra) can be distinguished as in that case evidence was improperly recorded in the inquiry, when the Magistrate had no jurisdiction. In any event no prejudice has been caused to the accused and the defect is only an irregularity which is curable under section 425 of the Criminal Procedure Code-Ebert v. Perera3.

H. W. Jayawardene, in reply.--Disregard of an express provision of law as to the mode of trial is not a mere irregularity which can be remedied-Subramania Ayyar v. King Emperor4. With regard to the distinction between irregularities and illegalities see Mudiyanse v. Appuhamy 5, R. v. Gee 6, The King v. Don William 7.

Cur. adv. vult.

December 19, 1945. J

Click Here to Read the rest of this document