052-NLR-NLR-V-35-SENEVIRATNE-v.-BODIA.pdf
252KOCH A.P.J.—Seneviratne v. Bodia.
1933Present: Koch A.J.
SENEVIRATNE v. BODIA.
650—P. C. Teldeniya, 19£32.
Verdict—Trial before Police Court—Interval between taking of evidence andrecording of verdict—Likelihood of failure of justice—Irregularity—Criminal Procedure Code, ss. 190 and 425.
An interval of four months between the taking of evidence and therecording of a verdict, which is likely to lead to a failure of justice, is notsuch on irregularity as can be cured by the saving provisions of section 425of the Criminal Procedure Code.
^J^PPEAL from a conviction by the Police Magistrate of Teldeniya.
Ponnambalam, for accused, appellant.
October 19, 1933. Koch A.P.J.—
The appellant was charged under section 315 of the Ceylon Penal Codewith committing simple hurt to one Seneviratne by shooting at him witha gun. He was convicted and sentenced to undergo three months ’rigorous imprisonment.
The proceedings commenced with a report from the Police beingpresented to Court on March 13, 1933. The complainant Seneviratnegave evidence on March 23. Thereafter the charge was framed and readto the accused, and on the latter pleading not guilty the trial was fixedfor April 27. On April 27 the complainant was recalled and cross-examined and the evidence of four other witnesses led for the prosecution.The prosecution was then closed and the trial adjourned for May 25 forthe defence. On May 25 the trial was postponed for June 22, when theaccused gave evidence on his behalf and called seven witnesses to supporthim. After the evidence of the last witness was recorded, the learnedMagistrate made the following note on the record:—“Judgment for July12. Next day criminal sessions at Teldeniya”. All the evidence wasrecorded at Teldeniya, and as nearly two months had expired between thecase for the prosecution and the defence being presented to him. the
KOCH A.P.J.—Seneviratne v. Bodia.253
learned Magistrate presvunably wanted time to consider what his findingshould be. No doubt this would not ordinarily necessitate more than aday or two, but as the Court is an itinerating one, the Magistrate fixedJuly 12. the first day of the next sessions at Teldeniya, for delivering hisjudgment. On that day the Magistrate recorded his verdict, “ Guiltyunder section 315 of the Ceylon Penal Code ”, and sentenced the appellantto three months’ rigorous imprisonment.
Mr. Ponnambalam, the learned counsel for the appellant, has on theappeal argued that under section 190 of the Criminal Procedure' Code itwas obligatory on the Magistrate to have recorded the verdict imme-diately on the termination of the trial, and that as three weeks hadelapsed between the completion of the trial * and the recording of theverdict and the passing of sentence, the conviction was irregular andamounted to a nullity.
The point is of some interest and not free from difficulty owing to laterdecisions on the matter being in apparent conflict with earlier ones. Thesection, viz., 190, runs as follows: —
“ if the Magistrate after taking evidence …. finds theaccused not guilty, he shall forthwith record a verdict ofacquittal. If he finds the accused guilty, he shall forthwithrecord a verdict of guilty and pass sentence upon him accordingto law ”.
The earliest case on the point is Venasy v. Velan.' The trial in thiscase took place on May 4, and the Magistrate did not convict untilMay 11. His Lordship Bonser C.J. expressed himself thus:—
“ I have already stated in another case that I think it most desirablethat Magistrates and District Judges should state their findingas to the guilt or the innocence of the accused immediately atthe conclusion of the trial, and if the impression left upon theirminds by the prosecution after hearing all the evidence is soweak and unsatisfactory that they are unable to say whetherthey consider the accused to be guilty or not, they should givethe accused the benefit of the doubt and acquit ”.
The next case is Rodrigo v. Fernando The point was not pressed andthe appeal was argued on other matters. The learned Judge, however,Withers J. was of opinion that inasmuch as the Magistrate had not givenjudgment "forthwith”, his judgment was of no force or effect. Heproceeded to state that had the point been pressed, he would have had tosend the case back for a re-trial.
The case that followed was P. C. Kalutara, No. 7,270 (July, 1899,Koch’s Reports 33). Withers J. on appeal said that the Magistrate’sjudgment was of no effect because it had not been forthwith recorded asrequired by section 190 of the Criminal Procedure Code. This is a very-important provision in the new Code and. Magistrates must be verycareful to act up to it, for non-compliance with its provisions renders their
judgments nugatory and necessitates a new trial,
i (1895) 1 N. L. B. 124.
2 (1899) 4 N. L. R, 176.
KOCH A.PJ.—Seneviratne v. Bodia.
254
This was succeeded by the judgment in P. C. Panadure, No. 9,292(1901). Here the complainant and accused agreed that the Magistrateshould defer his judgment for one month pending a settlement. Thiswas allowed. The settlement fell through and at the end of the monththe accused was sentenced to three months* rigorous imprisonment. HisLordship Acting Chief Justice Lawrie held that it was ultra vires to give averdict a month after the trial. The conviction was accordingly quashed.Thus it will be seen that so far, the opinion of this Court was that theirregularity that proceeded from a non-compliance with the provisionsof section 190 was incurable.
In 1905, however Wendt J. in the case of Peris v. Silva1 rather thoughtthat a failure to conform with the requirements of this section at mostamounted to an irregularity in the procedure, and although it would be aground for altering and reversing a judgment of a competent Court if afailure of justice was occasioned, nevertheless held that the irregularitywas not necessarily fatal. The delay here was only two days, and theCourt of Appeal did not feel that this was sufficiently long to occasion afailure of justice.
In Assistant Government Agent, Kegalla v. Podi Sinno * Pereira J. heldthat a delay of six months in recording a verdict and delivering judgmentcould not be cured, by the application of the saving provisions in section425 of the Criminal Procedure Code to so great an irregularity. Heexpressed no opinion as to whether he agreed with the earlier judgmentsor the dictum of Wendt J.
Maartensz A.J. in Sahul Iiamid v. Bansadu3 agreed with Wendt J.*sopinion in holding that non-compliance with the provisions of section 190was not necessarily fatal, and that as there was only a delay of three daysin the recording of the verdict and the delivering of the judgment, theconviction should stand, as in his opinion no failure of justice was occa-sioned thereby.
His Lordship the present Acting Chief Justice struck a new note in themost recent case on the point (Samsudeen v. Suthoris*). He was ofopinion that the language employed in section 190 was so clear that itdid not require any reference to section 214 which dealt with the judg-ments of District Courts, and that the interpretation of the provisions ofsection 190 did not require that the verdict should be recorded “ forthwith ”after the evidence was taken. In any case as the delay only amountedto four days, he felt that no failure of justice was occasioned. In con-/nection with this view I wish to point out that Garvin J. in the case ofJoseph v. Punchirala6 thought that section 190 clearly contemplated thepassing of a sentence immediately upon an entry of a verdict of guilty.
In this state of the law I feel that delay in recording a verdict, even ifit did amount to an irregularity, was not necessarily fatal to a convic-tion and the conviction would stand unless a failure of justice has beenoccasioned. In the most recent cases I have quoted the delay was amatter of a few days and this was not considered sufficiently long tooccasion a failure of justice, but in the present appeal I find that no
1 3 Bal. Reps. IGo.3 4 Times Late Reps. Ceylon 14b.
5 15 N. L. R. 2$.* 29 .V. L. It. 10.
4 4 Ceylon Lato Recorder 39.
DALTON S.PJ.—Ramanathan Chettiar v. Ratnasingham.255
pronouncement of the acceptance or rejection of the evidence of theprosecution was made till nearly three months after that evidence wascompletely recorded and four months after the examination-in-chief ofthe complainant. This is very unsatisfactory, and I am not satisfiedthat it has not occasioned a failure of justice.
I therefore quash the proceedings and conviction and order a new trialbefore a different Magistrate.
Conviction quashed.