131-NLR-NLR-V-47-HENRICUS-Appellant-and-WIJESOORIYA-A.-S.-P-Respondent.pdf
378
SOERT8Z A.C.J.—Uparis v. Police.
1948Present :de Silva J.
HENRICUS, Appellant, and WIJESOORIYA (A.S.P.),Respondent.
208—M. C. Avissawella, 34,877.
Criminal procedure—Sentence passed on accused on date of verdict—Judgmentsubsequently written—Not pronounced in open court—Fatal irregularity—Criminal Procedure Code, ss. 304, 30f>.
Where, at the conclusion of a trial, the Magistrate found the accusedguilty and passed sentence on him, but the judgment 'which was writtenat a subsequent time was not delivered in open court—
Held, that the irregularity was one which was not covered by section425 of the Criminal Procedure Code.
Henrietta v. Wijesooriya (A.S.P.).
379
A
PPEAL against a conviction from the Magistrate’s Court,Avissawella.
H. V. Perera, K.C. (with him O. E. Chitty and C. de S. Wijeratne),for the accused-appellant.—Counsel argued at length that the convictionwas contrary to the weight of evidence in the case, and then contendedthat judgment had not been delivered in the case in the manner requiredby sections 304 and 306 (1) of the Criminal Procedure Code. The judg-ment was not delivered in open court. The judgment was not availableto the accused for nearly six weeks. Counsel cited judgments ofMoseley J. (S. C. Nos. 521-523/M. C. Colombo 19,137—S. C. Minutesof October 26, 1944) and of de Kretser J. (S. C. 750/M. C. Balapitiya38,574—S. C. Minutes of June 18, 1941). The requirements of sections304 and 306 are no mere matters of form. They are based upon goodand substantial grounds of public policy—See Queen Empress v. Hargo-bind Singhl. This case was approved in Bandama Atchayya v. Emperor.2
T. S. Fernando, C.C. (with him E.P. Wijetunge,C.C.), for the Attorney-General.—The two cases cited for the appellant have been consideredin later Indian cases and have not been followed. The view taken inIndia has been that the non-delivery of the reasons at the same timeas the pronouncing of the sentence is not fatal to a conviction—See themajority judgment in Senapati v. Rajwar 3, followed in Tilafe Chandra,Sarkar v. Baisagamoff 4. The Calcutta view was followed in Bombay—vide Emperor v. Thaver Issaji s. Even if there be an irregularity, suchirregularity is not fatal, and is cured by section 425 of the CriminalProcedure Code—vide Emperor v. Morio Khan 6.
The expression “ judgment ” is used in various senses in the varioussections of the Criminal Procedure Code. In the case of Mondul v.Banerjee1, it was held that “judgment ” indicated some final determinationof the case which would end it once for all, such as an order of convictionor acquittal. The finding of a verdict coupled with the sentence is the“ judgment ”—per Ennis J in Kershaw v. Rodrigo8, followed by the samejudge in R. v. de Silva 8. See also A:I. R. 1933, Madras 251.
There are several Indian decisions holding that non-compliance withsome part or other of sections 304 and 306 of the Criminal ProcedureCode is not fatal to a conviction, e.g., where judgment is pronounced injudge’s bungalow by reason of his illness—See Chitaley’s CriminalProcedure Code of India, Vol. II., p. 1898 ; judgment not written inEnglish or in the language of the Code as required by the Indian CriminalProcedure Code.—Sed Dhanukdari Singh v. Harihar Singh10 ; omission tosign and date a judgment—See Ram Sukh v. Emperor11 ; affixing Magis-trate’s signature by means of a stamp—See Subramanya Ayyar v. Queen.12
1 (1892) I. L. R. 14 Allahabad, 242 at p. 272.
3 (1903) I. L. R. 27 Madras, 237.
3 (1893) I. L. B. 21 Calcutta, 121.
4 (1896) I. L. R. 23 Calcutta, p. 502.
8 (1911) 12 Criminal Law Journal, p. 457.
(1911) 12 Criminal Law Journal, p. 610.
(1901) I. L. R. 28 Calcutta, 652.
(1916) 3 C. W. R„ p. 44.
* (1916) 3 C. W. R„ p. 235.
10 (1906) 4 Criminal Law Journal, p. 162.
11 23 Criminal Law Journal, p. 688.
(1883) I. L. R. 6 Madras, p. 396.
3S0
DE SILVA J.—Henrietta v. Wijesooriya (A.S.P.)
In the present ease there is no question of any possible prejudice to theaccused. The sentence was in order- On the day the sentence waspassed an appeal was filed. It was open to the accused, this being acriminal case, to raise in this court any ground of appeal although notstated in his petition. An accused person is not aggrieved by the reasonsgiven in a judgment, but by the order of conviction and the sentence.
Cur. adv. vuU.
July 27, 1946. »e Silva J.—
Ini this case three charges were made against the accused, namely (1)that being a public servant, to wit, Sub-Inspector of Police, Padukka,in June, 1945, he accepted for himself a gratification other than a legalremuneration, to wit, a sum of Rs. 50 from one Harankawatte VidanelageCharlis Singho of Udugama for omitting to do an official act; (2) that heaccepted a similar gratification in July, 1945 ; and (3) that he accepted asum of Rs. 50 and a bottle of Ceylon Arrack valued Rs. 10 as a gratificationin similar circumstances. After trial, which was concluded on December20, the Magistrate found the accused not guilty of the 1st and 2nd chargesand guilty of the 3rd charge and postponed the case for the followingday for sentence. On the 21st he sentenced the accused to rigorousimprisonment for a period of six weeks and ordered bail to be given in a•sum of Rs. 250 in the event of an appeal. He also recorded that he wouldgive his reasons later. Thereafter, no reasons appear to have been givenin Court. A judgment has been written and is now in the record, butthis judgment has not been delivered in Court. As the judgment hadnot been dated and there was nothing to show whether it hadbeen delivered in Court or not an inquiry was made from the Magistratewhether the judgment had been delivered. In his reply he stated that heindicated orally to the accused in open Court, in the presence of hislegal adviser, his findings on the facts and the substance of the reasonsfor his decision when he imposed sentence on the accused. With regard-to the judgment which he had written, he stated it was not delivered inCourt.
In these circumstances I have to consider whether there has been asubstantial compliance with the provisions of sections 304 and 306 of theCriminal Procedure Code. Section 304 provides that the judgment inevery trial under this Code shall be pronounced in open Court eitherimmediately after the verdict is recorded or at some subsequent time ofwhich due notice shall be ‘given to the parties or their pleaders, andthe accused shall, if in custody, be brought up, or, if not in custody,shall be required to attend to hear judgment delivered except when hispersonal attendance during the trial has been dispensed with and thesentence is one of fine only. Section 306 provides that the judgmentshall be written by the District Judge or Magistrate who Heard the caseand shall be dated and signed by him in open Court at the time of pro-nouncing it, and in cases where appeal lies shall contain the point orpoints for determination, the decision thereon, and the reasons for thedecision. Sub-section (2) of that section states that it shall specify theoffence if any of which and the section of the law under which the accusedis convicted and the punishment to which he is sentenced. These two
DE SILVA J.— Ptrera v. Dfiarmamtne, Stein Inspector.
881
sections quite clearly show that the judgment must be contemporaneouswith the sentence and that the sentence forms, in fact, a part of thejudgment.
Various cases have been cited which show that an irregularity in notsigning a judgment or not complying with all the requirements of thesesections is considered to be fatal or not according to the circumstancesof each case. It is not necessary to refer to these cases in detail becausethere is no indication in what circumstances sitch an irregularity will beconsidered to be fatal or not. In this case, however, the position is thatso far there has been no judgment delivered at all but merely the sentence.
In the circumstances, I think the irregularity is one which is notcovered by section 425 of the Criminal Procedure Code. I would,therefore, set aside the conviction and send the case back for trial in duecourse before another Magistrate.
Case sent back for retrial.