052-NLR-NLR-V-49-TISSERA-Appellant-and-DANTELS-S.-I.-Police-Respondent.pdf
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DIAS J.—Tiaaera t>. Daniels.
1948Present: Dias J.
TISSERA, Appellant, and DANIELS (S. 1. Police),Respondent.
S. C. 1,434—M. C. Gampaha, 39,642.
Criminal Procedure Code—Judgment—No reasons for decision—Does it vitiateconviction t—Sections 306, 425.
Failure to comply with the provisions of section 306 of the Criminal.
Procedure Code does not necessarily vitiate a conviction.
-A.PPEAL from a judgment of the Magistrate, Gampaha.
S. C. E. Rodrigo, for first accused, appellant.
C. Alles, Grown Counsel, for the Attorney-General.
January 28, 1948. Dias J.—
The first accused-appellant and another man were jointly chargedwith having caused hurt with a knife (section 315) to one Nimams.The evidence for the prosecution consisted of the testimony of the injuredman and another, and the headman who produced his diary in whichwas recorded that a prompt complaint against the appellant was made to
him.
The defence foreshadowed, having regard to the Dootor’s evidence,was that the injury sustained by the complainant was trivial and might,have been self-inflicted, that the complainant was a man of bad characterand that there was a motive why the complainant should falsely implicatethe appellant, who also pleaded an alibi.
The Magistrate without making any attempt whatever to weigh theevidence on both sides delivered a Lord Chancellor’s opinion in thefollowing terms : “ I find both accused guilty. In the case of the secondaccused, I consider it advisable to bind him over …. Remandfirst accused ”. Then some days later, the appellant having beenbrought before him, he proceeded to apportion sentence to the appellantand sentenced him to three months’ regorous imprisonment and to enterinto a bond to keep the peace for six months, in default to undergo a.
. further term of imprisonment for one month.
Mr. Rodrigo, 1 think rightly, complains that the Magistrate not havingcomplied with the imperative piovisions of section 306 of the CriminalProcedure Code, this Court in appeal is not able to deal with the defenceof the accused adequately. It has been pointed out times withoutnumber that the object of section 306 is to enable the Supreme Court tohave before it the specific opinion of the judge of the lower court onquestions of fact, that it may judge whether the finding is correct or not—See Verupadian v. SoUamuttu1. It has also been held that the failure toobserve the imperative provisions of section 306 is a fatal irregularity—See Amsa v. Weerawagu2. The authorities have even gone to the extentof holding that even in a simple case the provisions of section 306 ought-to be complied with—Welle Kangany v. Amador is 3.
1 (1901) 1 Browne 384.2 (1933) 11 Times Law Reports 50.
• (1915) 3 Sal. N. C. 64.
NAGAi.INGAM J.—Carlina Nona v. de Silva.
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ACr Alias has brought to my notice the judgment of Mr. Justice■Soertsz in S. C. No. 64(5—47 M.C. Tricomalee, 11,3041 where my brothersaid : “ There undoubtedly is an irregularity of procedure in this casein that the Magistrate has not given any reason for convicting theappellant. But in all the circumstances I think this is an instance inwhich the provisions of section 425 of the Criminal Procedure Codemay be applied He, therefore, dismissed the appeal holding that the■conviction was amply supported by the evidence. I entirely agree withmy brother that there may be cases in which the failure to observe theprovisions of section 306 may be cured by the application of the provisions•of section 425, and that it is not an inflexible rule that a conviction mustalways be set aside whenever there is an irregularity in regard to theprovisions of section 306. But it seems to me that the present casetails far short of the facts which Mr. Justice Soertsz was dealing with.Here there is the defence of an alibi. It is the law that if the plea raiseda reasonable doubt in the mind of the Magistrate, the accused is entitledto be acquitted. There is a total failure on the part of the Magistrate tograpple with these considerations and I do not think it just or fair, thepoint having been taken, that the conviction should be allowed to stand,but whether counsel for the appellant has acted wisely in taking thispoint is a matter of which he is the best judge ; it may perhaps be to.the disadvantage of the appellant.
I quash the conviction and send the case back for a new trial beforeanother Magistrate.
Sent back for re-trial.