003-NLR-NLR-V-29-SAMSUDEEN-v.-SUTHORIS.pdf
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1927.
Present: Dalton J.
SAMSUDEEN v. SUTHORIS269—P. C. Colombo, 27,546.
Verdict—Meaning of the phrase “ forthwith record ”—Criminal ProcedureCode, s. 190.
Section 190 of the Criminal Procedure Code does not enactthat the verdict shall he recorded forthwith after taking theevidence.
^PPEAL from a conviction by the Police Magistrate of Colombo.
tj. A. Rajapakse, for accused, appellant.
’ N. E. Weerasooria, for complainant, respondent.
April 14, 1927. Dalton J.—
The appellant has been convicted on a charge of breach of trustand sentenced to four months’ rigorous imprisonment. The appealis from that conviction and from that sentence.
The evidence in the case was led on February 11, 1927, and atthe conclusion of the defence on that day the learned Magistraterecorded that he would give judgment on the 12th. On the 12thhe wanted further time for consideration and recorded that he wouldgive judgment on the 14th. On February 14 he found the accusedguilty and sentenced him to imprisonment a$ I have stated.
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It is urged in appeal that inasmuch as he did not find the accusedguilty or not guilty immediately after taking the evidence thatthe proceedings are bad in view of the provisions of section 190 ofthe Criminal Procedure Code. That section enacts that—
” If the Magistrate after taking the evidence for the prosecutionand defence finds the accused not guilty he shall forthwithrecord a verdict of acquittal. If he finds the accused guiltyhe shall forthwith record a verdict of guilty and passsentence according to law.”
It is argued for the appellant that the word ‘ ‘ forthwith '' in thatsection has reference to the taking of evidence for the prosecutionand defence; in other words, that what the section says is thatafter taking the evidence for the prosecution and defence theMagistrate shall forthwith record his verdict. There is authorityto support this contention in Rodrigo v. Fernando.1 Withers J.states that “ this section enacts that the Magistrate shall recordhis verdict of acquittal or guilty forthwith after hearing the evidencefor the prosecution and defence.” If one reads the judgmentand if one has reference to the inverted commas in the first partof the judgment it is apparent that the section has been misquoted,for the learned Judge says '* that section *190 enacts that aMagistrate shall after taking the evidence for the prosecution anddefence forthwith record a verdict of acquittal or guilty as he mayfind … There is therefore that authority which supports
the contention of counsel for the appellant.
Another case is P. C. Panadure, 9,292.2 There the headnotedoes not accurately* set out the decision of Lawrie A.C.J.,but in the words used by the learned Judge he does hold that” verdict must not be given a month after trial, it must begiven forthwith.” The reporter in his headnote has taken thatto mean ” forthwith after evidence taken It is possible thelearned Judge meant that, but it is not stated, nor is the earlier caseof Rodrigo v. Fernando (supra) referred to. It is clear, however, thatfor other reasons the appeal was allowed and the conviction therewas quashed. In Petris v. Silva3 Wendt J. appears to haveinterpreted section 190 in the same way as Withers J. in the earliercase. He, however, came to the conclusion that failure to carryout this requirement does not necessarily make the proceedingsinvalid. He was of opinion that it was at most an irregular pro-cedure, and in the case before him occasioned no failure ofjustice.
For myself, reading section 190 I have the. greatest difficulty infollowing those decisions as regards what that section enacts.It seems to me that the condition precedent to the recording of
1 4 N.L. R. 176.2 5 N. L. R. 140.
* 3 Bed. Reports 166.
1987*
Dalton J,
Samsudeenv. Suthoris
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t#ft;
Dai/ton J.
Sanmtfaen9, Svthori-8
the verdict is the finding of the verdict and not the taking of evidence.The taking of the evidence may be well said to be a conditionprecedent to finding the verdict in a case in which evidence is led.I am, however, unable to agree that this section enacts that theverdict shall be recorded forthwith after taking the evidence.Section 214 plainly provides in the case of District Courts that theDistrict Judge shall forthwith, or not more than 24 hours afterthe case for the prosecution and defence are concluded, recorda verdict of acquittal or conviction. It is argued from that, thatwhat the Legislature provides in section 190 is that in the case of aMagistrate his verdict should be recorded immediately after takingthe evidence for the prosecution and defence. The languageof Section 190 seems to me to be so plain that it does not requireany reference to section 214 to assist one to interpret’ it. On thatinterpretation of section 190, as there has been in the case nowbefore me, a recording of the verdict forthwith after the findingof the verdict, and without any time elapsing between the two,a point of law must fail. In any case, I would also point outthat no failure of justice has been occasioned.
The appeal was also based upon the severity of the sentence.It is true that in this case the sum of money misappropriated wassmall. The accused, however, was in a position of trust;his offence was deliberate, and, as the learned Magistrate states,“ methodical Nothing has been placed before me which wouldin , my opinion justify me in interfering with the sentence passedby the learned Magistrate.
Appeal dismissed.