HAKMANA KODITUWAKKUGE DIAS and ANOTHER, Petitioners and J. B. C. SUWARIS and

037-NLR-NLR-V-79-2-HAKMANA-KODITUWAKKUGE-DIAS-and-ANOTHER-Petitioners-and-J.-B.-C.-SUWARIS-and.pdf


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U'XJ ESUKDEP.A, J.—Dias v. Suwaris
2.978 Present: Wijesundera, J., Vythialingam, J. and
Walpita. J.
HARMAN A KODITUWAKKUGE DIAS and ANOTHER,Petitioners
ando
J.B. C. SUWARIS and ANOTHER, RespondentsS- C. Application 894/77—D. C. Panadura 519
Administration of Justice Law. No. 44 of 1973, section 186—Requirementthat verdict be given within 24. hours of evidence being concluded.When section 186(2) of the Administration of Justice Lawprovides that “ the verdict shall be recorded not later than 24hours after the conclusion of the taking of evidence ” in a trialin the District Court, it cannot be construed to moan i.hat the24 hours run from the time the addresses are over. The meaning ofthe words of the Statute are plain and no other construction ispossible.
'Cases referred to :
Band" v. David. 50 N.L.R. 375.
S.C. 374/75—M.C. Parana. 9712 S.C. Minutes of 23.7.77.
S.C. 445/76—M.C. Kil.inochchi 14386, S.C. Minutes of 19.8.77.
^APPLICATION in revision or for Writs of Certiorari andProhibition.
Dr- Colvin R. de Silva, with P. K. Liyanage, ManouriMuthettuwegama, B. Weerakoon and W. B. Jayasekera’ forthe petitioners.
Vpananda Yapa, Senior State Counsel, for the respondents.
Cur. adv. vult.
June 23, 1978. Wijesundera, J.
This is an application by two of the three accused who wereconvicted in the District Court of Panadura of various chargeson the 20th October, 1977, to have cheir- convictions set aside in
WIJKSUNDERA, J.—bias v. Suwaris
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the exercise of the power vested in this court under sections 11and 13 of the Administration of Justice Law or for the grantand issue of a writ of certiorari on the 1st respondent, quashingthe verdict of guilty recorded on that date and for the issue of awrit of prohibition, prohibiting him from proceeding furtherwith the case in passing sentence and in recording his reasons.The 3rd accused was convicted in his absence and is not a partyto these proceedings. He is said to be in India.
The two petitioners along with seven others were indicted inthe District Court of Panadura on 11 charges under the Penal■Code of being members of an unlawful assembly, of causing hurtunder section 314 of the Penal Code to a number of persons on thebasis of section 146 of the Penal Code, of committing robberyunder section 380 read with section 146 of the Penal Code and•of committing the offences of hurt under section 314 of the PenalCode and robbery under section 380 read with section 32 of thePenal Code. The trial commenced on the 31st day of December1976. A State Attorney prosecuted. The evidence of the prosecutionwas concluded on the 15th June, 1977, and the learned DistrictJudge called upon the accused for their defence. The Attorney forthe accused moved for a date which was granted. The learnedAttorney on the adjourned date called the petitioners and,concluded the evidence on the 9th August, 1977. On the applicationof the learned Attorneys the addresses were postponed forvarious reasons and ultimately fixed for the 12th and 13thOctober. On these two dates the State Attorney, and the Attorneyfor the accused addressed and on the 13th October, 1977, therewere submissions in particular on the meaning of section 186of the Administration of Justice Law. According to the record,Dr. Colvin R. de Silva conceded, this case had been postponed onthe 13th October for further addresses for the 20th October.
On the 201h October, before coming on the bench learnedDistrict Judge inquired whether the State Attorney had arrivedand in fact delayed to come on the bench in doing so. When thelearned Judge found that the State Attorney had not come hecame on the bench, acquitted 4th, 5th, 7th 8th and 9th accused,the 6th accused having being acquitted earlier, and proceeded toconvict the 2 petitioners and the 3rd accused who was tried inhis absence. As the learned Attorney challenged the powers ofthe court to proceed to convict as the addresses were concludedaccording to him on the 13th October, there was an ugly incidentand the learned District Judge, at the end of it “ proceeded togive the rtsc of the verdict ”. The two petitioners and the third•accused were convicted of the charges based on unlawfulassembly and common intention, and the reasons postponed for28th October. On the 25th October, 1977, this court issued notice
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WIJESUNDERA, J*.—Dias v. Suwotm
on the present application and directed the learned District Judgeto stop further proceedings and to forward the record. Therecord was sent to this court on the 27th October. It contains noreasons for the conviction or verdict which in terms of the'Administration of Justice Law in section 186 (2) have to be givenwithin 14 days of the date of verdict, viz. 20th October. This timelimit has long passed and the reasons cannot now be given ascontemplated and provided for in the Administration of JusticeLaw, even if this application is dsmissed. There is now left onlythe affidavit hied by the learned District Judge on the 24thNovember and what is recorded in the journal entry and what isstated in the “ Order ” made by the District Judge on the 20thOctober for this Court to find out the reasons for the convictions.
Whether relief should be granted to the petitioners can beexamined in two ways :— Firstly from the contents of theaffidavit of the learned trial Judge and the entries in the recordahd the contents of an “ Order ” made by the trial Judge.Secondly by construing the meaning of section 186(2) of theAdministration of Justice Law.
To consider the first aspect ; the learned District Judge’s
affidavit states: “On the 13th October it was agreed by
all parties including Mr. Karalasingham that time was necessary
to study the evidence and to consider the number of
reported cases submitted in view of the legal arguments on
sections 140. 146 and 32 of the Penal CodeI told counsel
that I might need further elucidation on the law” From this:
it is quite plain that the learned District Judge had not made-up his mind on the charges^regarding any of. the accused. On the-13th October he thought that he will need further assistance.He was doubtful and hesitating. By the 20th October this stateof mind had not changed because he further states that on the-morning of the 20th October he sent for the State Attorney totell him that he “ needed further addresses on the law.” Butthe State Attorney had not arrived. So his state of mind couldnot have changed. He still needed assistance on his own admission.His state of mind was that he was prevented from concluding thatthe accused were guilty. A reasonable doubt is nothing more norless than that degree of doubt or state of mind which prevents areasonable person from coming to the conclusion sought, whichin this case is the guilt of the accused. When he came on thebench Mr. Gunaratne, Attorney-at-Law appeared for the State inthe absence of the State Attorney. In his affidavit he states thatthere were no further addresses and the learned Judge said that“ if State Attorney were present he would have asked forfurther elucidation on the counts of the Indictment ”. This onlyconfirms the doubts of the learned trial Judge. But the learned!
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W IJE^OXDEKA, J.— Dias r. Sit nutria
trial Judge proceeded to convict three of the accused. He does notstate how his doubts were resolved. In another paragraph hestates that “ the verdict was based on proof and the prosecutionhad proved its case beyond reasonable doubt and after theevidence was studied.” This, with great respect, is inconsistentwith what he had said and had in fact happened as pointed outearlier. Therefore he was in error in convicting without resolvinghis doubts or difficulties on the law. If he was doubtful thecorrect course for him to have taken, if he was recording aveidict, was to have recorded a verdict of acquittal in respect ofall the accused. Consequently the verdict of guilty must be setaside.
The journal entry of 20th October and the affidavit of thelearned trial Judge state that when he was about to convict thethree accused there was a scene in Court, as the learned Attorneymaintained that the Court had no jurisdiction to convict theaddresses being over on the 13th. It is unnecessary to go intothe details of the incident. The learned trial Judge accepted theapology tendered to him by the Junior Attorney at the end ofit. But heated exchanges between the bench and the bar culminat-ing in the march of a policeman cannot do credit to those con-cerned. It matters not who is right or who is wrong or who is thewinner or who is the loser. The task of every Attorney in a case,as Dr. Colvin R. de Silva submitted, fnust be to assist the trialJudge in the difficult task of returning a correct and a just verdictand a Judge should be appreciative of the assistance when given.Incidents of this type must not occur because when they werecaused in the process Justice may well be the loser.
The second aspect is the correct meaning of section 186(2). Itwas submitted by Dr. Colvin R. de Silva that as the evidence wasconcluded on the 9th of August, 1977, the verdict should havebeen returned within twenty-four hours of that conclusion andnot from the conclusion of the addresses, as contemplated insection 186 of the Administration of Justice Law. Section 186of the Law reads :
186(1) If the Judge after taking the evidence of the
prosecution and defence and such further evidence (if any) ashe may of his own motion cause to be produced, finds theaccused not guilty he shall record a verdict of acquittal. If hefinds, the accused guilty he shall record a verdict of guilty andshall pass sentence upon the accused according to law andrecord such sentence.
(2) The verdict shall be recorded not later than twenty-fourhours after the conclusion of the taking of evidence, and thereasons for the verdict shall be recorded not later than fourteendays after recording the verdict.
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WIJESUNDERA, J".—Dias v. Sitwaris
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The sentence, if any, shall, subject to the other provisionsof this Law, be recorded at the time of the recording of theverdict.
This provision is identically the same as section 169 relatingto verdicts by a Magistrate. Section 186(2) requires the Judgeto record the verdict not^ later than twenty-four hours after“ the conclusion of the taking of evidence Sub-section (1)
speaks of “after taking the evidence of the prosecution”
This means obviously after the evidence given by the witnesseshas been included and recorded. The meaning of this phrase insubsection (2) must be the same as in sub-section (1). It mayappear that in view of section 184 (4) this interpretation cannotbe given to section 186 (2). Section 184 (4) gives the rights to theaccused to sum up the evidence. This right can be exercisedonly after the evidence called by him is over. Therefore thequestion arises whether the 24 hours run from the time theaddresses are over. This may be desirable. But the language ofsub-section (2) is very clear that the period runs from theconclusion of the evidence. In the ordinary case this time maybe sufficient. There may be a case where the evidence is long andan accused needs more than a day to conclude his summing up.The answer to this may be that the Administration of JusticeLaw contemplated the Judge setting a time limit to the summingup to enable him to deliver the verdict in 24 hours. TheAdministration of Justice Law, it must not be forgotten providedtill recently a time limit of half-an-hour which can be extendedby another hour for appeals.
In a trial by a Judge and a Jury, the addresses begin soon afterthe evidence. Then there is the Judge’s summing up followedby the verdict. In the average case the verdict is returnedwithin twenty-four hours of the conclusion of the evidence.Therefore it is not unreasonable to assume that the legislatureintended a similar procedure in trials before a District Judge withthe difference that the verdict has to be returned within a fixedtime. This contemplates addresses being delivered soon after theevidence followed by the verdict. Such a procedure avoids theordeal an accused has to undergo in waiting for verdict, causedby the postponement of the addresses. This is a paramountconsideration. In the present case, although the evidence isdirect, the verdict was returned 10 weeks after the conclusion ofthe evidence.
Section 186 may be compared with the corresponding sectionin the Old Criminal Procedure Code. It is section 214 (1)*
When the cases for the prosecution and defence areconcluded and the assessors’ opinion, if the trial has beenwith the aid of assessors has been recorded the District Judge
WIJEBtTNDEBA, J.—Dia* u. Suwaris2GS
shall forthwith or within not more than twenty-four hoursrecord a- verdict of acquittal or conviction.
The words used in the section are “ cases for the prosecutionand defence ”, The twenty-four hours is to start from the time“ the cases for prosecution and defence are concluded ” whichundoubtedly means from the conclusion of the addresses. Notime limit was fixed for addresses. What has really happened isthat the old practice is being followed even alter 1.1.1974 by someJudges. There is no reason for me to conclude that in all trialsthe old practice is being followed. That was not the position ofthe State.
The State referred the court to the case of Banda v. David, 50N.L.R- 375. That was a decision on the interpretation of section190 of the Old Code and cannot be relied upon at all as authorityfor the proposition that the course adopted by the trial Judge islawful. The Code did not provide for addresses after the evidencein the Magistrate’s Court. Section 190 of the Code relates toprocedure in those courts and the only difference between section190 of the Code and section 186 (1) of the Law is the omissionof the word “ forthwith ” from the law. In section 190 of theCode a Magistrate was required to record the verdict forthwithafter he finds an accused guilty. Section 186(1) of the Lawrequired the verdict to be recorded within 24 hours of the takingof the evidence. The two are different. The question referred inthat case was whether the recording of the verdict by theMagistrate on the following day when he had “ concluded thetaking of evidence on both sides” the previous day was lawful.It is interesting to note that the court in that judgment appearsto have regarded the words “ concluded the taking of evidence ”to mean when the physical recording of evidence was over. TheState submitted that the law contemplated witnesses being calledeven during the address and therefore the twenty-four, hoursmust start from the termination of the addresses. If evidence becalled during the addresses I would think twenty-four hours willrun from the time that evidence is over. There was no othersubmission made on behalf of the State.
In the Sinhala version of the Administration of Justice Lawsection 186 (2) reads :
words cannot include the addresses as I understand the language.The meaning of th.e words in both languages is clear.

These

The words used are
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W1JESXTJf DER A, J.—Dion v. Suwaris
Where the meaning of the words of a statute is plain nothingcan be done but to obey it. Therefore section 186 (2) providesthat the verdict should be recorded within 24 hours of the'■conclusion of the evidence. To give any other meaning is toignore the words and legislate, the office of the Judge is “Jusdicere ” and not “Jus dare.” It is indeed a matter for thelegislature whether this section should be amended and in whatmanner.
Two other decisions were referred to in the course of thesubmissions. Both relate to trials in the Magistrate’s Court, wherethe provisions relating to addresses are slightly different fromthose relating to trials in the District Court. In S.C. 374/75 M.C.,Horana 9712 S.C.M. 25.7.77. a Magistrate reserved the verdict on17.12.74 but did not record it till 18.2.75 and two Judges were ofthe view that there was a violation of section 169 (2) of the law.The Judgment does not state when the evidence was concluded-as in view of the delay of the verdict it did not matter when itwas over. In the S.C. 445/76 M.C. Kilinochchi 14386 S.C.M.of 19.8.77. two Judges of this Court held that the proviso was- inapplicable. In the instant case the two Attorneys moved fordates at various stages for addresses. A hand-written copy ofthe evidence in Sinhala was forwarded to the Attorney for theaccused on his application for a copy of the proceedings. Thistook time. However the application of the proviso does not arisein this case.
The question lef.t is what is the remedy to be granted. In viewof the first reason given for setting aside this verdict therecannot be a retrial of these accused. Tn any event there can beno retrial of those acquitted. The 3rd accused is said to be inIndia and he has not moved this Court. I do not see how he canbe retried. The name of the 2nd accused who is the 2nd petitioner,it has been submitted and not contested by the State and whichI find is correct from the record, has not been mentioned to thePolice though he is known by name to the witness who implicatedhim for the first time in Court. There- is then no purpose inordering him to be retried. The only order which can be made inthis case is the acquittal of the two petitioners and ■ The 3rdaccused. In the exercise of the powers of revision given to thisCourt under sections 11 and 13 of the Administration of JusticeLaw, at the conclusion of the arguments the convictions of thetwo petitioners and the 3rd accused were quashed and they wereacquitted.
-Vythialingam, J.—I agree.
Walpita, J.—I agree.
Convictions quashed.