H. N. Q. FERNANDO, J.—Satharasinghe v. Jurianaz
1964Present: H. N. G. Fernando, J.D. S. SATHARASINGHE, Appellant, and C. E. JURIANSZ(Excise Inspector), Respondent
S. O. 728(63—M. C. Colombo South, 14,106/N
Criminal procedure—Mode of delivering judgment—Signing and dating of judgmentprior to date of pronouncement—Illegality—Right of defence Counsel toaddress Court—Criminal Procedure Code, as, 304, 306.
Where a judgment which was intended by a Magistrate to be deliveredat the earliest on 11th October was written and signed by him on 25thSeptember—
Held, that there was a violation of the requirement in section 306 of theCriminal Procedure Code that a judgment shall be signed and dated by aMagistrate in open Court at the time of pronouncing it.
Held further, that it is quite improper for a Magistrate to fix a date foraddresses of Counsel and then to complete and sign the judgment beforehearing the address of the defence Counsel.
-AlPPEAL frdm a judgment of the Magistrate’s Court, Colombo South.H.E.P. Coway, for the Accused-Appellant.
A. A. de Silva, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 21, 1964. H. N. G. Fernando, J.—
In this trial for an offence under the Excise Ordinance, the evidencefor the prosecution waB led on 14th September 1962, and the evidencefor the – defence on 24th September 1962. On the latter date theMagistrate made the following minute :—“ Defence closed leading in
H. N- ©. FERNANDO, j.—Satharasinghc «. Jurians-z
evidence Dl. Addresses on 11.10.62.” The case was called foraddresses on 11th October 1962, but the journal entry for that datereads :—“ Mr. Crossette Thambiah is ill and Mr. L. Jayatilleke on hisbehalf moves for a postponement on personal grounds. Allowed.Addresses on 18.10.62.”
For the date 18.10.62 to which the case had been thus postponedthere is the following journal entry :—
** Accused D. S. Satharasinghe (present). Case called for addresses.
I find the accused guilty and I convict him. He admits one previous
conviction for similar offence. I sentence him to a term of four
months R. I.
(Initialled) N. W. Dissanayake.”
The journal does not state that addresses were in fact heard on18th October, but a note in the record at page 47 indicates that certainauthorities were cited to the Magistrate by Defence Counsel. It seemsperfectly clear from the journal that, after the address of DefenceCounsel on 18th October 1962 :—
The Magistrate recorded his verdict of guilty ; and
The accused admitted one previous conviction.
In point of fact, however, the judgment, the original of which ishandwritten by the Magistrate, is dated 25th September 1962, and not18th October 1962. Learned Crown Counsel could not contend that thedate 25th September 1962 had been stated in the judgment throughsome error, for there is nothing in the record to support such a possi-bility. On the other hand the commendable industry of Counsel appearingbefore me for the appellant has brought to light a circumstance whichconfirms the prima facie opinion that the judgment was in fact (as itindeed purports to have been) written and signed on 25th September 1962.
The Magistrate states in the concluding paragraph of the judgmentthat the accused admits one previous conviction for a similar offence.Now this statement is supported in the journal only by the entry of18th October 1962, and one might accordingly have supposed that theparagraph was written on or after 18th October, and therefore not. on25th September. But Counsel has referred me to the record of anotherprosecution and conviction against the same accused for a differentExcise offence, which is M. C. Colombo South Case No. 13,354/N heard bythe same Magistrate whose reasons were delivered on 4th September 1962.The appeal from the conviction in that case (S.C. No. 792/63) was listed'before me on the same date as the present appeal. It seems clear enough,at least for present purposes, that because of the earlier conviction on4th September by the same Magistrate, he had on 25th Septemberknowledge of the former conviction, and utilized that knowledge torefer in his present judgment to an admission of th&t conviction by
H. N. G. FERNANDO, J.—Satharasinghe v. Juriansz
the accused, although no admission had been made at the stage whenhe wrote the judgment. If that knowledge was so utilized, one cannotexclude the possibility that the Magistrate utilized that same knowledgein reaching his verdict against the accused on the facts.
According to the journal entry of 18th October 1962, the verdictin this case was recorded on that date, and section 304 of the CriminalProcedure Code required the judgment to be pronounced thereafter.There is no ground for doubt that this requirement, namely verdictfirst and pronouncement of judgment thereafter, was observed by theMagistrate on 18th October 1962. But section 306 of the Code requiresthat the judgment shall be signed and dated by the Magistrate in openCourt at the time of pronouncing it. The signature and dating, on the25th September 1962, of a judgment which (having regard to the journalentry of 24th September 1962) was intended to be delivered at theearliest on 11th October, was in violation of this requirement. I cansee no excuse for this violation of a requirement which falls to be observed,and I trust is observed, every day by ©very District Judge and everyMagistrate.
There is authority in my own judgment in SumanaseJcera v. Inspectorof Police, Ella1 and that of my brother Tambiah in Murugiah v.Outschoorn2, for the proposition that the right of defence counsel toaddress a Magistrate before verdict arises from a practice which hashardened into a rule. But even if it be that counsel has no absoluteright to address at that stage, counsel was in fact accorded that rightin this case, and it was a mere sham, unworthy of being practised bya Court, to fix a date for addresses and then to complete and sign ajudgment before hearing the address of counsel. It was in additiongravely discourteous to the counsel, who it would seem, was a seniorQueen’s Counsel.
The peculiar manner in which the Magistrate has acted and theappearance of prejudice against the accused’s counsel, satisfy me thatthe case is one in which at the least justice does not appear to have beendone. If there are explanations not apparent on the record for theserious flaws which are apparent, the Magistrate -will no doubt have anopportunity to furnish them when my observations come to the noticeof the proper authority. I direct the Registrar to transmit copies ofthis judgment to the Secretary, Judicial Service Commission, for theinformation of the members of the Commission.
I quash the conviction and sentence. Considering all the circum-stances, I think some amends are owed to the accused. I thereforeacquit him of the offence charged.
1 (1957) SI *V. h. P. 424.
* (J863) 85 X. L. R. 372.
D. S. SATHARASINGHE, Appellant, and C. E. JURIANSZ (Exsice Inspector),Responden