112-NLR-NLR-V-61-THE-ATTONEY-GENERAL-Applicant-and-S-LINGAM-CHETTIAR-Respondent.pdf
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WEERASOORIYA, J.—Attorney-General v. lAngam Chettiar
1958Present: Weerasooriya, 3,
THE ATTORNEY-GENERAL, Applicant, and S. UNGAMCHETTTAR, Respondent
S. G. 236-—Application in Revision in M. G. Ratnapura, 65908
'Criminal procedure—Accused convicted pet mcuriam—Power of Magistrate to vacateconviction and sentence on same day—Power of Supreme Court to restore,in revision, the finding of conviction—Criminal Procedure Code, ss. 188 (1),306 (2) {4), 857 (3).
The proviso to section 306 (4) of the Criminal Procedure Code does notalways enable a Magistrate who has convicted an accused person per incuriamto reverse the judgment on a consideration of matters that come to light beforehe adjourns for the day.
On June 17, 1958, the accused was convicted on his pleading guilty to thecharge framed against him. Later, in the course of the same day, it was pointedout to the Magistrate that the Emergency Regulation under which the accused~was charged had been rescinded. Thereupon the Magistrate vacated the earlier'order convicting the accused as having been made per incuriam, and dischargedthe accused. The plea of guilty had not been withdrawn by the accused atthe time when the Magistrate made the second order discharging the accused.
Held, that the proviso to section 306 (4) of the Criminal Procedure Code-could not be construed as sanctioning the second order made by the Magistratepurporting to rectify the earlier order.
Heldfurther, (i) that in view of the provisions of section 188 (1) of the Criminal'-Procedure Code the Magistrate had no power to make the order dischargingthe accused as long as the plea of guilty stood.
(ii) that the power of the Supreme Court to restore, in revision, the convictionand sentence was not contrary to the provisions of section 357 (3) of the CriminalProcedure Code.
A
-^APPLICATION to revise an order of the Magistrate’s Court, Ratnapura.
Ananda Pereira, Crown Counsel, for the Attorney-General in support.
No appearance for the accused-respondent.
July 17, 1958. "Weerasoobha, J.—
In this case the accused was charged on the 3rd June, 1958, withhaving on that day committed a contravention of an Emergency CurfewOrder made under regulation 17 of the Emergency (Miscellaneous Pro-visions and Powers) Regulations published in Government GazetteExtraordinary No. 11,322 of the 27th May, 1958. To this charge the-accused pleaded not guilty and the trial was fixed for the 17th June,1958, on which date the accused withdrew the plea and pleaded guilty.On that plea the learned Magistrate convicted the accused and sentencedhim to pay a fine of Rs. 500 in default to 3 weeks’ simple imprisonment.
'Y itiERASO OiUYA, J.—Attorney-General v. lAngam CJiettiar
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This order of the Magistrate is signed By him and constitutes the judgmentin the case. It would appear that later in the course of the day certainrepresentations were made to the Magistrate by Counsel for the accusedin consequence of which the Magistrate made the following order:—
“ Mr. Wirasekera for the accused brings to my notice that the regula-tion under which the accused is charged today has been rescinded by theorder published in Government Gazette of 7.6.58 (Emergency OrderTTo. 2).
I cannot find any saving provision in respect of offences committedbefore the date of the latest regulation.
The position is that the regulation under which the accused hasbeen charged has been rescinded.
I vacate my order sentencing the accused to pay a fine of !Rs. 500in default sentencing the accused to a term of three weeks’ S. I., ashaving been made <per incuriam.
I discharge the accused.”
The present application has been made on behalf of the Attorney-General in respect of the two orders made by the Magistrate on the 17thJune, 1953. Under section 306 (1) of the Criminal Procedure Code ajudgment in a criminal case is required to be written by the DistrictJudge or Magistrate who heard the case and to be dated and signed byhim in open Court at the time of pronouncing it. Section 306 (4) providesthat when a judgment has been so signed it cannot be altered or reviewedby the Court which gives such judgment, but there is a proviso whichallows a clerical error to be rectified at any time and any other error to berectified before the Court rises for the day.
No authority was cited to me as to the meaning of the words ** anyother error ” in the proviso. Apparently the Magistrate thought thatin the circumstances brought to his notice after he had pronouncedjudgment convicting the accused, the conviction amounted to an errorwhich he could have rectified before he adjourned for the day. If thisview is correct it would necessarily follow that in every case where ajudgment of conviction, or even of acquittal, has been pronounced it isopen to a Magistrate to reverse the judgment on a consideration of mattersthat came to light after the judgment, provided he does so before he ad-journs for the day. I find it difficult, however, to construe the provisoto Section 306 (4) as sanctioning such a procedure. In the case of Ma~ranibe JLvmarihamy v. Per era 1 the accused was convicted and sentenced inthe first instance to pay a fine. But after the judgment had been signedby the Magistrate he learnt that the accused had certain previous convic-tions. Thereupon the Magistrate struck out of the record the sentencepreviously passed and proceeded to impose a term of imprisonment.De Sampayo, J., held that the second sentence was not in order, and herestored the original one. 1
1 (1919) 6 o. W. R, 325.
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Samardkone v. Public Trustee
In the present case the conviction of the accused proceeded on his pleaof guilty. That plea had not been withdrawn even at the time when theMagistrate made the second order discharging the accused. Section188 (1) of the Criminal Procedure Code requires that on such a plea beingtendered the Magistrate shall record a verdict of guilty and pass sentenceaccording to law. I do not see how in view of these provisions theMagistrate could have made the order discharging the accused as long asthe plea of guilty stood.
I accordingly quash the second order of the Magistrate by whichhe purported to vacate the sentence passed on the accused and to dis-charge him. The position, therefore, will he that the judgment of theMagistrate convicting the accused on his plea and sentencing him to paya fine of Rs. 500 in default to three weeks1 simple imprisonment will standand the proceedings will be remitted to the Magistrate so that effect maybe given to the judgment and sentence. I do not think that the orderI have made is contrary to the provisions of section 357 (3) of the CriminalProcedure Code.
As the accused pleaded guilty to the charge, no appeal lies against hisconviction, and any difficulty as regards the computation of the appealableperiod consequent on my order will, therefore, not arise. It will, how-ever, be open to the accused to take such other action as he may be ad-vised if he wishes to canvass the correctness of his conviction.
Application allowed.