Rex v Singh and Another (criminal Appeals Nos. 113 and 114 of 1946) [1946] EACA 56 (1 January 1946)

## APPELLATE CRIMINAL

Before THACKER, J. and DE LESTANG, Ag. J.

## REX, Respondent (Original Prosecutor) $\boldsymbol{\nu}$ .

(1) INDER SINGH AND (2) SANT RAM, Appellants (Original Accused) Criminal Appeals Nos. 113 and 114 of 1946

Criminal procedure—Application for adjournment—S. 203 C. P. C.—Refusal of application—Discretion of Court.

The appellants were charged with criminal trespass and were represented by an advocate at their trial. The trial began on 22nd January, 1946, and was then adjourned to 2nd February, 1946, and eventually resumed on 26th February, 1946. It was then adjourned again to 1st March, 1946, 4th March, 1946, and resumed on 6th March, 1946. As the learned Magistrate who was trying the case was due to leave on transfer two days later he intimated to the parties that he would sit until the case was completed. At 6.45 p.m. the appellants' advocate applied for an adjournment till the following day on the ground that he wished to call two witnesses who were not in attendance.

The learned Magistrate refused the application. The appellants appealed.

Held (30-7-46).—That a Magistrate has a discretion in the matter of adjournments and that his refusal of the application for an adjournment in the circumstances of the case was a proper exercise of his discretion.

Appeal dismissed.

$\sim$

Trivedi for the Appellants.

Dennison, Crown Counsel (Kenya), for the Crown.

JUDGMENT.—Both appellants together with a third man who has not appealed were convicted by the learned Resident Magistrate, Nairobi, of criminal trespass contrary to section 303 (1) P. C. and sentenced to fines of Sh. 800 and Sh. 600 respectively with imprisonment in default and to £10 costs.

The appellants were represented at the trial by Mr. Trivedi. The trial began on 22nd January, 1946, and was then adjourned to 2nd February, 1946, and subsequently to 6th February 1946, 23rd February, 1946, and eventually resumed on 26th February, 1946. It was then adjourned again to 1st March, 1946, and 4th March, 1946, and resumed again on 6th March, 1946. As the learned Magistrate who was trying the case was proceeding to Nyeri on transfer two days later, he intimated that he would sit until the case was completed. At 6.45 p.m., Mr. Trivedi applied for an adjournment till the following day on the ground that he wished to call two witnesses who were not in attendance, i.e. his clerk and one Sunderdass who was in Kampala and also to recall Mr. Holmes who had given evidence for the prosecution and had not been cross-examined.

The learned Magistrate refused the application saying "I see no reason why all these witnesses could not have been available to-day, I am engaged tomorrow and I cannot grant an adjournment".

The first point in this appeal is that the learned Magistrate was wrong in refusing the adjournment and that a new trial should be ordered.

By section 203 C. P. C. the Court is granted a discretion in the matter of adjournments and we do not think that in refusing Mr. Trivedi's application in this case the learned Magistrate acted unjudicially or capriciously. The trial having been set down for that day all the witnesses should have been in attendance. and it is immaterial that the learned Magistrate decided to proceed with the hearing of the case after the normal working hours. He had a very good reason for so doing, and it would appear from his judgment that he had given ample notice of his intention to the parties. It is the duty of the prosecution and defence to see that their witnesses are in attendance at the trial. If the defence takes upon to dispense with the attendance of some witnesses at the trial, as must have been the case here, it must be prepared to suffer the consquences.

The second point is that the conviction is wrong because the appellants were brought on the premises by a partner of the complainant.

We see no substance in this point. The fact that the entry was effected with the permission or consent of one of the co-possessors is immaterial and the offence is complete when there is an entry with one of the intents set out in the section. The learned Magistrate found as a fact that the appellants entered with the unlawful intent of turning out the complainant by threats and the evidence supports his finding.

The appeals are dismissed.