1959 Present: Sinnetamby, J.

G. A. PERERA, Appellant, and JA-ELA POLICE, Respondent

S. C. 158-M. C. Negombo, 93374

    Criminal procedure-Evidence recorded in the presence of the accused prior to framing of charge-Duty to recall the witnesses at the trial-Criminal Procedure Code ss. 148 (1) (b), 151 (1) proviso ii, 152 (3), 187, 189 (2), 297, 425.

Evidence- Witness disbelieved in part-Can the rest of his evidence be acted upon?

Where a Magistrate records evidence in the presence of the accused after service of summons on him and prior to framing of the charge, he should recall the witnesses after the charge is framed re-examine them and tender for cross-examination. Accordingly, a witness whose evidence is take consideration by the Magistrate in deciding to assume jurisdiction section 152 (3) of the Criminal Procedure Code must be tendered at trial for cross-examination.

Before a Magistrate who rejects parts of the evidence of a witness c upon certain other parts of it, there should be strong corroborative evidence in support of those other parts.

APPEAL from a judgment of the Magistrate's Court, Negombo

S. B. Lekamge, for 2nd Accused-Appellant.

W. Paul, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

June 14, 1959. SINNETAMBY, J.-

The Police, in this case, filed in Court a report under Section 1 (b) charging the three accused with robbery, voluntarily causing grievous hurt and with causing hurt in the course of robbery. The offences are punishable under sections 380, 316 and 382 respectively of the Penal Code. The Magistrate issued summons on the accused.

The Magistrate could have, at this stage, before issuing summons he so desired, recorded some evidence in terms of proviso 2 of section 151 (1) of the Criminal Procedure Code. He, however, did not so. On the day the summons was returnable the accused were present. The Magistrate then proceeded to record the evidence of the prosecuting Inspector, presumably with a view to assuming jurisdiction under s 152 (3). In his evidence, the Inspector stated that Weerasinghe plained that he was assaulted by the three accused, robbed of a containing Rs. 64, a driving license, fountain pen and a wristlet watch

valued at Rs. 200. The witness was not subjected to cross-examination and the Magistrate, thereupon, assumed jurisdiction as Additional District Judge.

Strictly speaking, if the Magistrate fails to record evidence under section 151 (I)proviso (ii) before the issue of summons, once the accused appears on a summons if it is a non summary case, the Magistrate should take non-summary proceedings but if it is a summary case, he should proceed in the matter indicated in section 187 onwards. I can, however, see no valid objection to his recording some evidence in order to assume jurisdiction as Additional District Judge, though he may do so after perusing any police reports that may have been submitted to Court. If he does record evidence it should, in my opinion, be evidence of witnesses to facts and not hearsay evidence of an Inspector who merely recorded the statement of such witnesses. Having recorded the evidence, the Magistrate is naturally affected by that evidence even in regard to the proceedings subsequent to the framing of the charge. Indeed it is after a consideration of that evidence that he decides to assume jurisdiction under section 152 (3). In this case, the Magistrate having assumed jurisdiction charged the accused in terms of the police plaint from a charge sheet. Thereafter, the prosecution led the evidence in support of the charges but the Inspector of Police was not recalled nor was he tendered for cross-examination. It is to be noted that even in the case of evidence recorded in the absence of the accused section 297 of the Criminal Procedure Code requires that such evidence should be at least read over in the presence of the accused and the witness tendered for cross-