098-NLR-NLR-V-50-BANDA-Appellant-and-DAVID-S.-I.-Plice-Respondent.pdf
Banda v. David
376
1949Present: Wijeyewardene C.J. and Gunasekara J.
BANDA, Appellant, and DAVID (S.I. Police), RespondentS. G. 299—M. G. Matcde, 7,954
Criminal Procedure Code—Recording of verdict by Magistrate—Forthwith—Is it immediately after the taking of-evidence ?—Section 190.
Section 190 of the Criminal Procedure Code does not require aMagistrate who convicts an accused person to record his verdictimmediately after he has concluded the taking of the evidence.
Vethanayagam v. Inspector of Police, Fankesanturai {1949) 50 N. L. R.185, overruled.
ApPEAT, from a judgment of the Magistrate, Mat ale.
A question of law was referred by Windham J. for the decision of twoor more Judges.
Jayaunckreme, with Malcolm Perera, for the accused appellant.
A. Wijemanne, Grown Counsel, with S. Wijesinha, Grown Counsel,for the Crown.
Cur. adv. vult.
376
GrPWASEK A~RA J.—Banda v. David
-June 29, 1949. Gtjnasekaea J.—
This case comes before us upon the following reference byWindham J.
“ There are no merits in this appeal on the facts. But a point oflaw has been raised, namely, that the learned Magistrate, havingconcluded the taking of the evidence on both sides, did not convictand sentence the accused immediately (i.e., without leaving the Bench)but did so on the following day. This, it is argued, was a non-com-, pliance with section 190 of the Criminal Procedure Code, and was notcurable under section 425. There are conflicting decisions on thispoint by single Judges of the Supreme Court; I refer, among others,to 3 B'alasingham 165, 29 N. L. R. 10, and 30 N. L. R. 185. Magistratesand advocates have accordingly no authoritative judgment to guidethem. I therefore consider that this is a proper question to be reservedfor the decision of two or more Judges of this Court, under section 48of the Courts Ordinance. I so reserve it accordingly ”.
Section 190 of the Criminal Procedure Code is in the following terms :—
* ‘ If the Magistrate after taking the evidence for the prosecutionand defence and such further evidence (if any) as he may of his ownmotion cause to be produced finds the accused not guilty, he shallforthwith record a verdict of acquittal. If he finds the accused guiltyhe shall forthwith record a verdict of guilty and pass sentence uponhim according to law and shall record such sentence ”.
The question is whether this section requires a Magistrate who convicts-an accused person to record his verdict immediately after he has concluded-the taking of the evidence and, if so, whether a Magistrate’s omissionto record his verdict at that stage is fatal to the conviction.
This question came up for consideration in the case of Rodrigo v.Fernando1 ’which was decided shortly after the present CriminalProcedure Code came into operation and Withers J. said :
“It is very important that a Magistrate should observe the pro-visions of section 190 of the Criminal Procedure Code, 1898, whichenacts that a Magistrate shall, after taking ‘ the evidence for theprosecution and defence, forthwith record a verdict of acquittal orguilt as he may find ’
He took the view that the section “ enacts that the Magistrate shallrecord his verdict of acquittal or guilt forthwith after hearing the evidencefor the prosecution and defence ”. It is apparent from what purportsto be a quotation from the section that this view was based on amisreading of the enactment.
In Peris v. Silva 2 decided in 1905, Wendt J. appears to have assumedthe correctness of this view. He said, however, that he was “ not pre-pared to hold that the mere fact of a Police Magistrate’s judgment nothaving been pronounced ‘ forthwith ’, as required by section 190 of theProcedure Code, is fatal to its validity”. Twenty-two years later,
1 (1899) 4 N. L. B. 176.a (1905) 3 Bal. 165.
G-UJSTASEK ATtA J.—Banda v. David
377
in 1927, the question was expressly considered in the case of Samsudeenv. Suthoris 1 and Dalton J. held that what the section requires is that the-verdict should be recorded, not forthwith after the taking of evidence-but forthwith after the finding of the verdict. This decision was followedfor the next twenty-two years until it was dissented from in the judgmentof Basnayake J. in Vethanayagarn v. Inspector of Police, Kankesanturai 2.
Basnayake J. considers that Dalton J’s interpretation is an imprac-tical view of the section. It seems to me, however, that that interpret-ation is in accordance with the plain meaning of the words of the section,,which are by no means ambiguous. I should say, with all respect, thatthere seems to be nothing impractical in a requirement that if the Magis-trate finds the accused not guilty he shall record a verdict of acquittalforthwith after he finds him not guilty, and that if he finds him guiltyhe shall record a verdict of guilty forthwith after he finds him guilty.
There is, no doubt, everything to be said for the view that it is eminentlydesirable that the Magistrate should record his verdict forthwith afterthe conclusion of the cases for the prosecution and the defence. Butit seems equally clear that if it was the intention of the Legislature tolay down such a procedure as an imperative requirement of law it hadlanguage adequate for the purpose. Thus, it is enacted in section 214of the Code that-—
“ When the cases for the prosecution and defence are concludedthe District Judge shall forthwith or within not more thantwenty-four hours record a verdict of acquittal or convictionWhat is enacted in section 190, on the other hand, is that—
“If the Magistrate …. finds the accused not guilty, heshall forthwith record a verdict of acquittal. If he finds the accused,guilty he shall forthwith record a verdict of guilty …
Clearly, section 214 requires a District Judge to record a verdict forth-with (or within twenty-four hours) after the close of the cases for theprosecution and defence, but section 190 requires a Magistrate to recorda verdict forthwith after he finds the accused guilty or not guilty as thecase may be.
Basnayake J. refers to the cases of Venasy v. Velan 3 and The Queenv. Kiriya 4 as showing that the earlier decisions of this Court (under the-Code of 1883) do not support the view taken by Dalton J. In the formercase Bonser C. J. observed that it was “ most desirable that Magistratesand District Judges should state their finding as to the guilt or innocenceof the accused immediately at the conclusion of the trial, and that ifthe impression left upon their minds by the prosecution, after hearingall the evidence, is so weak and unsatisfactory that they are unable to-say whether they consider the accused to be guilty or not, they shouldgive the accused the benefit of the doubt and acquit.’-’
I do not see anything in the view taken by Dalton J. that is inconsistentwith this view : it is one thing to say that it is “ most desirable ” thata Magistrate should state his finding immediately at the conclusion ofthe trial, and quite another to say that there is an imperative statutory
requirement that he should do so.
1 (1927) 29 N. L. R. 10.
* (1949) SO N. L. R. 135.
(1895) 1 N. L. R. 124.(1894) 3 S. O. R. 100.
378
Peradeniya Service Bus Go. v. Commissioner of Motor Transport
The reason for the view taken in The Queenv. Kiriya (supra), that uponthe conclusion of. a District Court trial the verdict should be given at once,appears to be that it is important that the verdict should be given whilethe impression made by the evidence is fresh in the mind of the judge.Bonser C. J. says in one of the passages quoted—
“ A subsequent reading over the notes of evidence is by no meansthe same thing as the fresh and lively impressions made by the oraltestimony of the witnesses. A story which looks very cogent andconvincing on paper may, when heard from the lips of the witnesses, beanything but satisfactory, and for a judge to wait until the impressionmade by the conduct and demeanour of the witnesses, which areoften more important than their words, has faded from his mind,and nothing is left but the dry bones of notes of evidence, is in myopinion an irregularity which is fatal to the interests of justice.”
The view taken by Dalton J. does not, as I understand it, suggest-that a Magistrate may wait until the impression made by the conductand demeanour of the witnesses has faded from his mind to arrive at hisverdict.
I would answer the question referred to us as follows —Section 190 ofthe Criminal Procedure Code does not require a Magistrate who convicts anaccused person to record his verdict immediately after he has concluded-the taking of the evidence.
Wij btew a scene C.J.—I agree.