Jamaldeen V. De Silva, P.J.

1954 Present: Gunasekara J.

JAMALDEEN, Appellant, and P. J. DE SILVA (S. I. Police),
Respondent

S. C. 1590-M. C. Colombo, 35,755/A

Criminal Procedure Code-Proviso to section 297-Scope of its applicability--Sections 151 (1), proviso 2, 151B, 407.

By Section 297 of the Criminal Procedure Code,

" Except as otherwise expressly provided all evidence taken at inquiries or trials under this Ordinance shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader :

Provided that if the evidence of any witness shall have been taken in the absence of the accused whose attendance has not been dispensed with, such evidence shall be read over to the accused in the presence of such witness and the accused shall have a full opportunity allowed him of cross-examining such witness thereon. "

Held, that the proviso does not enable the prosecution to utilize as part of its case at a trial evidence taken in the accused's absence before he was charged.

APPEAL from a judgment of the Magistrate's Court, Colombo.

No appearance for the accused appellant.

V. S. A. Pullenayagam, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

August 16, 1954. GUNASEKARA J.-

The appellant was convicted, after a summary trial under section 152 (3) of the Criminal Procedure Code, on a charge of having dishonestly retained a stolen radio receiving set valued at Rs. 250, knowing or having reason to believe it to be stolen property, and was sentenced to 12 months rigorous imprisonment. The evidence that was taken at the trial in the presence of the appellant is clearly insufficient to support the conviction. The learned crown counsel agrees that by itself it is insufficient, but he has sought to eke it out with some evidence that was taken in the appellant's absence, under section 407 of the Criminal Procedure Code. The evidence of each witness who was examined on that occasion was read over to the appellant at the trial in the presence of the witness and the appellant was given an opportunity of cross-examining the witness on that evidence. The learned crown counsel contends that by reason of the provisions of section 297 of the Code the evidence so read to the appellant was thereby made a part of the case against him.

The proceedings in the magistrate's court were instituted on the 28th January, 1953, upon a police report under section 148 (1) (b) of the Criminal Procedure Code. The evidence taken in the appellant's absence was taken on the 25th March. He appeared before the court for the first time on the 23rd November, and on that day the learned magistrate decided to try the case summarily and framed a charge against him in terms of the allegation in the police report. He pleaded not guilty, and the trial was postponed to the 7th December. The trial was held on that day and the appellant was convicted.

Section 297 of the Criminal Procedure Code is in these terms :

" Except as otherwise expressly provided all evidence taken at inquiries or trials under this Ordinance shall be taken in the presence of the accused or when his personal attendance is dispensed with in the presence of his pleader :

Provided that if the evidence of any witness shall have been taken in the absence of the accused whose attendance has not been dispensed with, such evidence shall be read over to the accused in the presence of such witness and the accused shall have a full opportunity allowed him of cross-examining such witness thereon. "

The main part of the section lays down the rule that evidence must be taken in the presence of the accused or his pleader except in those cases in which the law has expressly provided for evidence to be taken in their absence. The proviso relates to one class of these exceptions, namely, where an inquiry or trial, as the case may be, has been proceeded with in the absence of an accused whose attenda

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