1947 Present: Dias J.

ARON SINGHO, Appellant and BUULTJENS (S. I. Police),
Respondent,

394-M. C. Colombo, 24,432.

Criminal Procedure-Inspection by Court-Of place where offence committed-Proper procedure to he followed-Courts Ordinance, s. 53.

A Court is entitled to inspect the scene of an alleged offence in order to arrive at a better understanding of the offence. The inspection must, however, be carried out with great care, and should not be made the occasion for the taking of fresh evidence. If anything is said or done which amounts to the taking of fresh evidence and the correction of any doubts in the mind of the Court, that evidence should be repeated from the witness-box, so that no prejudice may be caused to the accused.

A Magistrate is empowered by section 53 of the Courts Ordinance to hold his Court "at any convenient spot" within the limits of his judicial division, but it must be a judicial proceeding,

APPEAL against a conviction from the Magistrate's Court, Colombo.

H. V. Perera, K.C. (with him Stanley de Zoysa and Lucien Jayetileke), for the accused, appellant.

J. G. T. Weeraratne, C.C., for the Attorney-General.

Cur. adv. vult.

June 20, 1947. DIAS J.-

The appellant, who is a fitter in the Ceylon Government Railway, was convicted under section 369 of the Penal Code with having on January 19, 1947, at the Railway Washing Shed, Maligawatta, Colombo, committed theft of a measure of rice from a goods wagon. He was sentenced to undergo six months' rigorous imprisonment.

The direct evidence was to the effect that the appellant was seen to insert an. implement like a spear into the space between, the door and the door frame of a sealed and locked steel goods wagon, and thereby pierced a bag of rice inside it causing the rice to flow down a groove of the spear like water down a chute. This rice the appellant was alleged to have collected in a bag.

It appears to have struck the Magistrate, particularly after the witness Corteling, the immediate superior of the appellant, had given evidence, that it would be a very difficult feat to steal rice from a sealed and locked goods wagon. After Corteling gave evidence the Magistrate recorded :

"I propose to stop the case to carry out a test with regard to the possibility or otherwise of P1 (being?) inserted through a part of
the door or frame. The number of the wagon is agreed to be 3682. "

The Magistrate then proceeded to record the evidence of certain witnesses who had come from a distance, and on the same day made the further record:

" I shall carry out the test I have stated above before I call on the defence."

At that stage the prosecution evidence had concluded. This being a summary trial, it was the duty of the Magistrate to make up his mind whether to call upon the accused for his defence or not. In order to make that decision, he had to be satisfied (a) that the prosecution had established the corpus delicti, and (b) if so, whether there was evidence which, if believed, would justify the finding that it was this accused who committed the offence in question. It is plain from the above minute, that before the Magistrate made up his mind he wanted to carry out a test as to whether the corpus delicti had been established, i.e., whether it was possible for anybody to abstract rice from a bag contained in a sealed and locked steel goods wagon.

Seven days later there appears the following minute on the record:

" Accused present. Inspected wagon. Further inquiry 5.3."

This proves that on some day between February 21, 1947, and February 28, the Magistrate had visited the scene and carried out his test. Then on March 5, he had made up his mind for he called upon the appellant for his defence. At that point Mr. Stanley de Zoysa for the appellant took the objection that the Magistrate's procedure was incorrect and cited the case of R. v. Seneviratne1[(1936)38 N. L. R. at p. 223.]. The Magistra