Wimalasuriya Et Al. V. De Saram

1947 Present: Dias J.

WIMALASURIYA et al, Appellants, and DE SARAM (Inspector of
Police), Respondent.

S. C.-773-774-M. C. Balapitiya, 57,702.

Criminal Procedure-Accused produced in Court-Evidence of witness recorded under section 187 (3) of Criminal Procedure Code-Necessity for recording that evidence de novo at the trial-Criminal Procedure Code, s. 297.

Where the accused were present in Court and the Magistrate, in order to be satisfied that there was sufficient ground for framing a charge against them under section 187 (1) of the Criminal Procedure Code, examined a witness in the presence of the accused and, after the charges were framed, that witness was recalled at the trial and his evidence was read over to the accused who cross-examined the witness-

Held, that the procedure was regular. Herath v. Jabbar (1940) 41 N. L. R, 217 (Divisional Court), followed. Wilfred v. Inspector of Police Panadure, (1945) 46 N. L. R. 553, distinguished.

Under section 297 of the Criimnal Procedure Code if evidence has been given in the absence of an accused before an inquiry or trial commences, and if that evidence has been taken improperly, that is to say where no provision has been made by law for the recording of such, evidence in the absence of the accused, then, when the accused appears and the inquiry or trial commences, the witnesses who had given evidence in the absence of the accused must be recalled and their evidence must be taken, de novo in the presence of the accused. Failure to do this vitiates the conviction of the accused.

On the other hand, if, in the absence of the accused, the evidence of witnesses has been properly recorded, that is to say In a manner provided for by law, then, when the accused appears and the enquiry or trial commences, it will be sufficient to recall the witnesses and in their presence to read their previous evidence over to the accused who should be allowed to cross-examine them.

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

A. H. C. de Silva (with him K. C. de Silva), for the second accused, appellant.

No appearance for the first accused appellant.

B. C, F. Jayaratne, C.C., for the Attorney-General.

Cur. adv. vult.

September 2, 1947, DIAS J.-

These appeals disclose no merits on the facts. On January 18, 1947, the police arrested Kalumahatmaya and Sumathipala for committing criminal trespass and being drunk and disorderly in a public place-When they were being conveyed under arrest to the police station in a motor car which had to halt temporarily owing to a deflated tyre, Kalumahatmaya seeing the first accused riding on a cycle called out to him and at the same time immobilised the car by removing the switch key. The first accused dismounted from his cycle and going up to the car opened the door of the vehicle and demanded the release of both men. When the police Sergeant refused, the first accused pulled the men out of the car. When the police officers endeavoured to prevent their rescue, the first accused called out to the second accused who was standing near, and both of them assaulted the police officers and rescued the two men. The police officers bore marks of the assault. The Magistrate in a careful judgment has given reasons for his finding that the charges have been proved. I see no reason for holding that he has come to a wrong conclusion on the facts. Each appellant was sentenced to undergo four months' rigorous imprisonment. Having regard to the high-handed nature of the offences proved against them, it cannot be said that the sentences are excessive.

The appeal, however, has been pressed on another ground. It is urged that the Magistrate has committed such an irregularity in his procedure that the convictions cannot stand, and that at least, the convictions must be set aside and the case sent back for a retrial before another Magistrate.

The offences were committed

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