Isidor Fernando Et Al. V. Roy Perera

1947 Present : Wijeyewardene. J

ISIDOR FERNANDO, et, al., Appellants, and ROY PERERA
(Inspector of Police), Respondent.

65-66-M.C. Negombo, 48,382.

Criminal procedure- Evidence of witness taken prior to framing of charge- should be recorded de novo at trial- Criminal procedure Code, ss.189,297.

The statement of the complainant or any other person recorded by the magistrate prior to the framing of the charge against the accused cannot be used as evidence at the trial unless it is recorded de novo, although it had been taken down in the presence of the accused.

APPEALS against two convictions from the Magistrate's Court, Negombo.

Stanley de Zoysa, for the accused, appellants.

Boyd Jayasuriya, C. C., for the Attorney-General.

Cur. adv. vult.

April 1947, WIJEYEWARDENE. J-

On may 23, 1946, the police field a report under sections 121(2) and 131 of the Criminal Procedure Code and produced in custody the three accused- the two appellants and one Water Fernando. The Magistrate remanded the accused till the following day when they were released on bail. On may 27, the Police instituted the present proceedings by filling a written report under section 148 (b), stating that the accused had committed offences under sections 314 and 315 of Penal Code. The accused were present on that day. On June 17, Kaithan, the victim of the alleged assault, was examined in the presence of the accused who were represented by Counsel. Thereupon, the Magistrate framed a charge under section315 against the accused and they all pleaded not guilty.

The evidence given by Kaithan on June 17 was presumably recorded under section 187(1) of the code which enacts that "Where the accused is brought before the court otherwise than on a summons or warrant the Magistrate shall after examination directed by section 151(2).. frame a charge against the accused". In recording this evidence the

Magistrate followed the procedure laid down in section1 50 (2) which is made applicable to an examination under section 151 (2) by section1 51B.

On September 6, Kaithan was recalled, and he was put a few questions in examination-in-chief and was then cross-examined by Counsel for the accused. Among other witnesses called for the prosecution on the date was Alice who gave definite evidence against the appellants. After hearing the evidence for the defence, the Magistrate convicted the appellants and acquitted Walter Fernando.

It is contended in appeal that the conviction is vitiated by the fact that on September 6 the Magistrate failed to record de novo the evidence of Kaithan given on June 17. It is urged that the trail in a case commences only after a charge is read and that the Magistrate has to follow then the procedure laid down in section 189 which reads:-

"(!) When the Magistrate proceeds to try the accused he shall take in manner hereinafter provided all such evidence as may be produced for the prosecution or defence respectively."

"(2) The accused shall be permitted to cross-examine all witness called for the prosecution and called or recalled by the Magistrate."

The section as cited above is section 189 of the Code 1898 as amended by section 13 of Ordinance No.13 of 1938. Before the amendment section 189 read:-

"(1) When the Magistrate proceeds to try the accused he shall read over to him the evidence (if any) recorded under section 150 [ corresponding to the new section 151(2) and 151 (B] and take in manner hereinafter provided all such further evidence as may be produced or the prosecution or defence respectively."

"(2) The accused shall be permitted to cross-examine and person whose evidence has been recorded under section 150 and all witnesses called for the prosecution and called or recalled by the Magistrate."

The deliberate omission in the amended section 189 of any reference to evidence recorded under the new section 151(2) and 151 (B) supports the argument of the

Click Here to Read the rest of this document