Attorney General V. Suppiah

1961      Present : Tambiah, J.

THE ATTORNEY-GENERAL, Appellant, and N. SUPPIAH and another, Respondents

S. C. 125/61-M.C. Gampola, 6388

Criminal procedure-Accused brought before Magistrate otherwise than by summons or  warrant-Witnesses  who   make   depositions   at   pre-trial stage-Should prosecution call all of them at the trial ?-Criminal Procedure Code, as. 148 (1) (b), 151 (2), 187 (1), 189 (1)-Evidence Ordinance, s. 138.

 A witness who is examined at the pre-trial stage when an accused person is brought before a Magistrate otherwise than on summons or warrant and who knows nothing about the facts of the case but states only that the produces the accused on a charge preferred against him need not be called to give evidence at the trial.

APPEAL from an order of the Magistrate's Court, Gampola.

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

No appearance for the Accused-Respondents.

Cur. adv. vult.

 May 24, 1961.   TAMBIAH, J.-
 

The point which arises for consideration in this case is whether a witness, who was examined at the pre-trial stage when the accused were brought before the Magistrate otherwise than on summons or warrant and who knew nothing about the facts of the case but stated that he produced the accused before the Magistrate on a charge preferred against the accused, should either be called or be tendered for cross-examination at the trial of the accused.

In this case, the 1st and 2nd accused were charged with having volun­tarily caused hurt to one Murugiah with a battle-axe and a knife respec­tively, under Section 315 of the Penal Code. They were convicted at the first trial. On appeal, the Supreme Court set aside the order of the Magistrate for failing to observe the provisions of section 187 (1) of the Criminal Procedure Code and the case was sent back for retrial. At the retrial, the evidence of Murugiah, the injured person, and the evidence of Senaratne, Police Constable 5333, were led before the charges were framed against the accused. Murugiah stated in his evidence that the accused had stabbed him, but Constable Senaratne said that he knew nothing about the facts of the case and that he was producing the accused since a charge of having caused hurt to Murugiah was pre­ferred against the accused. After the evidence of these two witnesses, the accused were charged and evidence was led both for the prosecution

as well as for the defence. The prosecution called the injured man, Murugiah, but Senaratne, who had given evidence at the pre-trial stage, was neither called to give evidence nor was he tendered for cross-examination. At the conclusion of the trial, the counsel for the accused, purporting to rely on the ruling in Perera v. Jaela Police[(1989) 61 N. L. R. 260.], contended that the trial was illegal, as the witness Senaratne, who had given evidence at the pre-trial stage, was neither called to give evidence nor was he tendered for cross-examination, at the trial of the accused. The Magis­trate upheld this point and discharged the accused observing that " another illegality has occurred now ". The Attorney-General has appealed from this order.
 

When an accused person is brought before Court, otherwise than on summons or warrant, Section 187 (1) of the Criminal Procedure Code states that the Magistrate should, after examination as required by section 151 (2) of the Criminal Procedure Code, frame a charge against the accused if he is of opinion that there is sufficient ground for proceeding against the accused. For this purpose, it is incumbent on the Magistrate to forthwith examine, on oath, the person who has brought the accused before the Court and any other person who may be present in Court able to speak to the facts of the case (vide section 151 (2) of the Criminal Procedure Code). These provisions were enacted to prevent abuse of the process of C

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