010-NLR-NLR-V-16-GOVERNMENT-AGENT-,-NORTH-CENTRAL-PROVINCE-v.-APPUHAMY.pdf
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Present: Ennis J.
GOVERNMENT AGENT, NORTH-CENTRAL PROVINCE, v.
APPUHAMY.
858—P. C. Anuradhapura, 27,191.
Summary trial—Long postponements irregular—Failure of iustice—Criminal Procedure Code, as. 188, 289, 425.
It is a denial of justice to postpone a summary case for anunreasonable length of time, for reasonable speed is essential ina summary trial.
The answer to the question whether an adjournment is’ un-reasonably long would depend upon the circumstances of each case.
T
HE accused, who was charged with having cleared land at thedisposal of the Crown without permit, claimed the land on
a copper sannas. The Magistrate made the following order onJune 18, 1906:—“ Send sannas and case both to the GovernmentAgent. Accused to appear when noticed.” No further steps weretaken until January 10, 1911. After a series of adjournments thecase was finally heard on November 11, 1919, and the Magistrateheld that the sannas was a forgery, and convicted the accused.
The accused appealed.
H. A. Jayewardene (with him Talaivasingham), for the accused,appellant.—The Magistrate had no power to make an order post-poning the case indefinitely or for an unreasonable length of time.
i (1800) 2 Q. B. at page 219.
IMS.
1912.
GovermentAgent,North-CentralProvince, v,Appuhamy
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No steps were taken in this case after June 18, 1906, till January 10,1911. This being a summary case the Magistrate should not ‘haveadjourned the case, except for a reasonable time. Counsel referredto sections 18jB and 289 of the Criminal Procedure Code.
The case was one for the Civil Court. The. evidence shows thatthe accused acted bona fide throughout. This is practically anaction by the Crown to establish title to a disputed land. Theaccused should have been sued in the Civil Court, and notprosecuted in the Criminal Court.
Obeyesekere, C.C., for the respondent.—The Court had jurisdictionto entertain the charge (Ordinance No. 10 of 1885; section 4). Theoffence has been clearly proved. [Ennis J.—Are not these longadjournments irregular?] The adjournments were made in theinterests of the accused himself. Moreover, he did not complain ofthe delay at any time. The section gives the Magistrate thepower to postpone a case for such time as he may considerreasonable. [Ennis J.—No Court will say that a postponementfor five years is reasonable.] If your Lordship is satisfied that a casehas been made out against the accused, section 425 would cure theirregularity. [Counsel took time to submit authority. Later,he cited 417—P. C. Anuradhapura, 27,957/]
Car. adv, vult.
December 20, 1912. Ennis J.—
In this case the accused was charged in March, 1906, in thePolice Court of Anuradhapura, at the instance of the GovernmentAgent-, with having cleared in December, 1905, certain land atthe disposal of the Crown contrary to the provisions of OrdinanceNo. 10 of 1885.
The case came on at various times between May 28, 1906, andJune 18, 1906, when the accused produced a copper saunas fromthe possession of his uncle. The sannas had not been registered.An order was then made:Send sannas and case both to the
Government Agent. Accused to appear when noticed/* The nextentry; in the journal under date June 21, 1906, is: “ Case sent toGovernment Agent.’*
It is to be observed that the Government Agent is the complainantin the case. No further steps in the matter were taken untilJanuary 10, 1911, when there is a note in the journal: “ This casehaving been returned by the Government with the request todispose of as usual, parties noticed for January 31, 1911.”
After a series of adjournments there is a note in the journal underdate September 18, 1912: “ Accused present on summons; admitsclearing.” The case was finally heard on November 11, 1912, whenthe question of the title of the accused to the land was thoroughlyinvestigated.
I S. C. Min., July 29,1910.
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The learned Police Magistrate in a very full and able judgmentfound that the sannas and another copper sannas produced by theaccused were forgeries, and that a rock sannas which the coppersannases were alleged to confirm did not give the accused any titleto the land, and, on the admission of the accused that he hadcleared the land, lie convicted him under the 1885 Ordinance andsentenced’ him to pay a fine of Rs. 25. Leave to appeal was givenby the Magistrate.
The Ordinance of 1885 was repealed in 1897 by Ordinance No. 16of 1897, which reproduce many of the provisions of . the earlierOrdinance, and, by section 5 of Ordinance No. 21 of 1901, anyoffence under the repealed Ordinance and any action incompletedwas not affected by the repeal.
On appeal it was argued that the long adjournments wereunreasonable and irregular, and that the evidence showed thatthe accused dealt with the land under a bona fide belief that hewas entitled to do so. It was further urged that the CriminalProcedure should not have been invoked to establish a claim totitle which should have been reserved for a Civil Court.
Section 4 of Ordinance No. 10 of 1885 expressly provided thatfor the purpose of any prosecution under the Ordinance the Courtshould have’ jurisdiction to try and determine any question of titlearising in the prosecution, and there is a proviso that the judgmentshould not be received as evidence of title or pleaded in bar in anycivil suit. It would seem, therefore, that there was nothing toprevent the question of title being gone into.
Under section 9 of the Criminal Procedure Code the Police Courtexercised summary jurisdiction. The accused appeared before theCourt on a summons on May 28, 1906, and on being asked to showcause why he should not be convicted said that he claimed the landon a talipot, and the case was postponed to June 18 to enable himto produce it. On June 18 he produced the unregistered coppersannas, when a postponement was ordered without any date beingfixed, and, apparently, to enable the complainant to examine thesannas. This was contrary to the procedure laid-down in the Code.Section 188, relating to summary procedure, after providing thatan accused who makes an unqualified admission of guilt may beconvicted and sentenced, says that if no such statement is made,the Magistrate shall ask him if he is ready for trial, and if he answersin the affirmative, the Magistrate shall proceed to try the case ; but ifthe accused is not ready, the. Magistrate may, subject to the provisionof section 289, postpone the trial to a date to be then fixed. Thesection proceeds to say that this procedure shall not prevent aMagistrate from taking evidence and then postponing the case,“ subject to the provisions of section 289, for reasons to be recorded
by him in writingfor a day to be fixed by him.” This
section, by the reiteration of some of the provisions of section 289,
1912.
Ennis J.
GovernmentAgent,North-CentralProvince, *•Appuhamy
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1912.
Ennis J.
GovernmentAgent,North-CentralProvince, «•4pjmfa0iy
namely, that the postponement is to be for reasons recorded inwriting and to a fixed date, seems to lay particular stress on theseparts of sections 289. The section, moreover, seems to indicate thatin a summary trial a postponement can be ordered only when theaccused is not ready for trial.
Section 425 of the Criminal Procedure Code provides that onappeal the judgement shall not be altered on account of any error,omission, or irregularity in the proceedings unless a failure of justicehas been occasioned thereby.
No objection appears to have been taken in the Police Courtduring the five and a half years over which the case extended to theprocedure adopted, and the point has not been mentioned in thememorandum of appeal. It has been urged for the first time bycounsel on the appeal. When the case was finally heard in thePolice Court it was veryj completely gone into, and the facts werecarefully and ably weighed by the learned Magistrate.
An unreported case (P. C. Anuradhapura, 27,957, S. C. 417),.judgment of July 29, 1910, under the same Ordinance, in whichthere had been a delay of over two years, and in which there was anappeal oi^ this among other grounds, has been cited by the Crown,where, on appeal, it was held that the delay was no bar to theprosecution, but in that case the delay was taken into account whendeciding the appeal, which was allowed. In this case it appears tome I have to answer the question, Can a summary case.be extendedover five and a half years by irregular and unreasonable postpone-ments without occasioning a failure of justice?
In my opinion the moment thelength of an adjournment becomes,without question, unreasonable, as it undoubtedly was in thiscase, from that time there would be a failure of justice, for reasonablespeed is essential in a summary trial. I am not prepared to sayhow long an adjournment may extend before it becomes unreason-able ; it would depend/ upon the circumstances of each case ; but ina summary trial an adjournment made without a strict observanceof the provisions of the Code relating to adjournments in summarytrials, without any record that the accused was not ready, extendingto a period of five years, and then only closed at the instance of thecomplainant, cannot possibly be reasonable, and is such’ a widedeparture from the procedure laid down for the guidance of theCourts in summary trials, that it is impossible to hold that it doesnot by itself occasion a failure of justice, notwithstanding that noearlier objection was taken to it.
While quashing the conviction, I am glad to add that the accused*has, in all other respects, been fairly dealt with in this case, andthat the delay has been occasioned through treating the casemore as a civil dispute than a criminal prosecution.
. Conviction qvaehed.