063-NLR-NLR-V-41-JONES-v.-AMARAWEERA.pdf
SOERTSZ A.CJ.—Jones v. Amaraweera.
263
1939Present: Soertsz A.C.J.
JONES v. AMARAWEERA.274—M. C., Tangalla, 7,486.
Petition of appeal—Manual act of lodging necessary—Transmission by post
irregular—Computation of time—Criminal Procedure Code, s. 338
(Cap. 16).
In accordance with the terms of section 338 of the Criminal ProcedureCode a petition of appeal must be lodged in Court by the appellant orsome person authorized by him.
The requirements cf the section are not satisfied by the transmissionof the petition by post.
Queen v. Herat (2 C. L. R. 118) followed.
The computation of time within which an appeal should be preferredmust be made from the date on which the conviction and sentence wererecorded and not frortrthe date on which the reasons for the decision weregiven.
The King v. de SiIva (3 C. W. R. 235) followed.
^ PPEAL from a conviction by the Magistrate of Tangalla.
L. A. Rajapakse, for accused, appellant.
Jansze, C.C., for complainant, respondent.
Cur. adv. vult.
July 21, 1939. Soertsz A.C.J.—
T
Crown Counsel invites my attention to a note made by the Magistratethat the petition of appeal was not “ correctly tendered under section 338.It has been sent to the Chief Clerk of this Court by registeredpost ….”. Crown Counsel also submits that the appeal is out
of time.
In regard to the first question, there is the case of The Queen v. Herat1in which Burnside C.J. held a petition of appeal is not “ lodged ” unlessthere is “ a manual act of lodging ” and that forwarding a petition ofappeal by post to the Judge of the Court although it might be “ a conve-nient practice ”, “ does not satisfy, the strict requirements of the Code ”.The Code referred to in Burnside C.J.’s judgment is Ordinance No. 3of 1383. But that does not affect the question because in our Codetoo the word used is “ lodged ”. It says “ a party may prefer anappeal …. by lodging within ten days .. with such
Magistrate’s Court …. a petition of appeal addressed to theSupreme Court”.
I can see no good reason for departing from this interpretation which,
I understand, has been followed by the Attorney-General in appealstaken by him since the date of that judgment. In my-view although it ispossible to give the word “ lodge ” a meaning which will include a depositmade through the post, in the context of section 338, I feel inclined toagree that “ a manual act of lodging ” appears -to have been in contem-plation.- I would, therefore, follow the ruling I have referred to and hold
1 (1892) 2 C. L. R. 118.
264
SOERTSZ A.C.J.—Jones v. Amaraweera.
that the petition of appeal was not properly lodged. There should, Ithink, be some personal contact between an officer of the Court and theparty lodging the petition, that is to say, the appellant himself or a partywho is his lawfully authorized agent, to vouch for the fact that thepetition is the petition of the appellant. It is true that in this case thepetition of appeal purports to be signed by the appellant’s proctor, butit cannot be assumed that in every case, the officer of the Court will knowthat the signature on the petition is the signature of the party whosesignature it purports to be.
In my opinion, the second point too is entitled to succeed. Admittedly,verdict was entered and sentence passed on March 10, 1939. The petitionof appeal although dated March 21, was not received in the Magistrate’sCourt till March 22, so that it is two days late, and not one day late asCrown Counsel submitted. Mr. Rajapakse however contends that thestatement of reasons which, he submits, constitute, the .“.judgment ” washot' 'given till March 13. This point too is covered by authority. InThe King v. de Silva1 Ennis J. held that the computation of time withinwhich an appeal should be preferred must be made from the date onwhich the conviction and sentence were recprded and not from the dateon which the reasons for the decision were given. Ennis J. in so holdingfollowed an earlier decision of his to which I might refer (Kershaw v.Rodrigo and others'). I would follow these rulings and I hold that theappeal is out of time even if, as stated, reasons for the decision were givenon March 13. But the record shows that these reasons were given onMarch 10, and I can entertain no affidavit to contradict that’fact.
Finally, Mr. Rajapakse asked me to deal with this case in revision. Ihave examined the evidence and have come to the conclusion that a clearcase was established and that the accused has been treated with greatleniency.
I reject the appeal and refuse the application for revision.
Appeal rejected.
1 (1916) 3 C. IV. R. 235.
S (1916) 3 C. W. R. 44.