072-NLR-NLR-V-50-THE-KING-v.-DAVOODULEBBE-et-al..pdf
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WIJBYEWABDENE C.J.—The Ring v. Davoodzilebbe
1949Present : Wijeyewardene C.J. and Windham J.
THE KING v. DAVOODULEBBE et al.
S. C. 224—229—D. C. (Criminal) Batticaloa 59
Criminal Procedure Code—Conviction of accused—Reasons not -pronouncedin open Court—Irregularity-—Curable—Sections 304 and 425.
The failure to comply -with the requirements of section 304 of theCriminal Procedure Code is an irregularity which is curable undersection 425.
-AlPPEAXi from a judgment of the District Judge, Batticaloa.
O.E. Chitty, with Vernon Wijetunge, for 1st, 7th and 21st accusedappellants.
S. Nadesan, for 2nd, 8th and 25th accused appellants.
R. A. Kannangara, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
March 16, 1949. Wuetewabdene C.J.—
The aceused are Muslim worshippers at the Periapallai Mosque and aresaid to have been opposed to some other Muslim worshippers who hadformed themselves into an association called the Baransanjee Associa-tion. The accused entered the Mosque on January 2, 1948, when themembers of the Baransanjee Association were at their prayers and.created a disturbance. They were charged in this case with havingcommitted various offences punishable under sections 140, 144, 291,316/146 and 314/146. The case came up for trial before Mr. F. E. Alles,District Judge of Badulla, who was specially gazetted as AdditionalDistrict Judge of Batticaloa, for August 23 to 26, 1948, and September 1to 3, 1948, to try the case. The case proceeded to trial against all theaccused except the 24th, who was too ill to attend court. At the con-clusion of the hearing on September 2, 1948, Mr. Alles acquitted the 20thaccused and convicted all the other aceused tried by him on all the countsin the indictment. On the same day he sentenced the 1st, 2nd and 7thaccused to six months’ rigorous imprisonment, the 8th, 21st and 25thto 3 months’ rigorous imprisonment each and ordered each of the remain-ing accused whom he had convicted to enter into a bond under section325 (a) of the Criminal Procedure Code for a period of two years, andto pay Its. 50 as Crown costs. Mr. Alles gave his “ reasons ” in a writingdated September 12, 1948. Those “ reasons ” were not pronounced inopen court as required by section 304 of the Criminal Procedure Code.The present appeals are preferred by 1st, 2nd, 7th, 8th, 21st and 25thaccused, who filed their petitions of appeal on September 2, 1948, imme-diately after the sentences were passed.
WIJEYEWARDENE C.J.—The King v. Davoodtil ebbe
275
So far as I have been able to gather from the proceedings the onlyreasons for sentencing the 8th, 21st and 25th accused to terms of imprison-ment appear to be that each of them “ admitted ” a previousconviction. The District Judge has not specified the particular offencesadmitted by them. The Crown Counsel was unable to state definitelywhich conviction sheet applied to each of these accused. The trialJudge should have taken care to see that there was definite evidenceas to the particular offence committed by each of the accused previouslyso as to enable this Court to decide the question as to the appropriatenessof the sentences passed on them. As regards the 21st accused the CrownCounsel stated that the previous conviction of the 21st accused appearedto be for retaining a stolen head of cattle in 1946. I am unable in thesecircumstances to see any good reason for passing a sentence of imprison-ment on the 8th, 21st and 25th accused, when the accused who have notappealed have been dealt with under section 325 (2) of the CriminalProcedure Code.
As regards the other appellants it was urged that
(а)the failure of the Judge to observe the provisions of section 304
of the Criminal Procedure Code amounted to an irregularitywhich could not be cured by section 425 of the Criminal Pro-cedure Code.
(б)that the “ reasons ” dated September 12, 1948, could not he
regarded as of any legal validity as Mr. Alles was not the DistrictJudge of Badulla on that day.
The cases of Henricus v. Wijesooriya1, Queen Empress v. HargobindSingh2, and Bandama Atchaya v. Emperor3 were cited in support ofargument (a). Our attention was also invited to Tissera v. Daniels4,S. C. 646—637—M. C. Trincomalee 11,304 (S. G. Minutes of October 23,1948), Tiagarajah v. Annaikoddai Police 5, and some Indian decisions.I am of opinion that the failure to comply with section 304 is anirregularity curable under section 425 of the Criminal Procedure Codeand that we need not acquit the accused or send the case for are-trial if we are satisfied that the convictions are supported by theevidence.
As regards the argument (6) the position is that we have to ignorethe reasons dated September 12, 1948, and deal with the case as we havemerely the conviction and sentence of September 2, 1948.
On a careful perusal of the evidence, I find no reason whatever to setaside the conviction of the appellants. On the other hand we have someconflicting evidence as to the 1st, 2nd and 7th accused, carrying someweapons. As there is no finding by Mr. Alles of which we could takejudicial notice to show us whether he accepted the evidence that the1st, 2nd and 7th accused carried weapons I am unable to see any reasonwhy they should be dealt with differently from those who were askedto enter into a bond.
1 (1946) 47 N. L. R. 378.3 (1903) 1. L. R. 27 Madras 237.
3 (1892) I. L. R. 14 Allahabad 392.4 (1948) 49 N. L. R. 162.
B (1948) 50 N. L. R. 109.
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BERTRAM C.J.—Banda, v. Angurala
For the reasons given by me I uphold the convictions of the appellantsbut set aside the 'sentences passed by the District Judge. I order eachof the appellants to enter into a bond in a sum of Rs. 200/200 with onesurety for a period of 2 years under section 325 of the Criminal ProcedureCode and pay a fine of Rs. 50 as Crown costs.
I direct that the attention of the District Judges and Magistratesshould be drawn to the important provisions of sections 304 and 306of the Criminal Procedure Code and that an explanation should be calledfor from Mr. F. E. AUes as to his failure to see that he was gazetted asa District Judge of Batticaloa on the relevant days.
Windham J.—I agree.
Appeals dismissed.
Sentences varied.