027-NLR-NLR-V-50-THIAGARAJAHAppellant-and-ANNAIKODDAI-POLICE-Respondent.pdf
Thiagarajah v. Annaikoddai Police
109
1948Present : Nagalingam J.
THIAGARAJAH, Appellant, and ANNAIKODDAI POLICE,Respondent
8. C. 1,354—M. O. Jaffna, 7,537
Criminal Procedure Code—Conviction by Magistrate—Failure to 'pronouncejudgment in open Court—Irregularity—Not cured by section 425—Sections 304 and 306.
A Magistrate, after lie lias written out his judgment, must pronounceit in open Court in the presence of the accused in terms of section 304=of the Criminal Procedure Code. Failure to do this is not such anirregularity as is covered by section 425 of that Code.
-A.PPEAL from a judgment of the Magistrate, Jaffna.
Renganalhan, with V. K. Kandasamy, for the accused, appellant,R. A. Kannangara, Grown Counsel, for the Attorney-General.
Cur. adv. vult.
(1915) IS N. L. R. 376.
(1922) 24 N. L. R. 17.
110
DfAGAIilNGAM J.—Thiagctrajah v. A.nnaikoddai Police
September 23, 1948. Nagaltngam J.—
The appellant in this case was convicted under section 272 of the PenalCode with having driven car No. X 5050 in a rash and negligent manner-so as to endanger human life, and has been sentenced to undergo a termof six weeks’ rigorous imprisonment.
The case for the prosecution was dependent upon the evidence of twoPolice officers, while the defence of the accused, which was that he hadnot driven the vehicle in question on the date of the alleged offence, wassupported by bis employer.
In view of the order I propose to make in this case I do not think itnecessary to express an opinion on the merits.
The main point argued in appeal was that the learned Magistrate hadnot delivered his judgment in open Court and that therefore the convictionwas bad. In support of the averment that the judgment was not deliveredin open Court an affidavit was filed by the appellant. In view of thestate of the record the affidavit was forwarded to the Magistrate for hisobservations. The Magistrate has informed this Court that his usualpractice when he convicts a person is to tell him in short thereasons for the conviction and “ not read out word to word the reasons ”that he has written out; but in regard to this case, he states that it may bethat he did adjourn after the conclusion of the trial and that the reasonswere written out in chambers. He, however, adds that even in thisinstance he would not have departed from his usual practice of telling theaccused shortly his reasons for convicting him, though the reasons maynot have been reduced to writing at that stage. The Magistrate doesnot, however, state that after he had written out his reasons for theconviction in chambers he pronounced those reasons at any time in openCourt or in the presence of the accused.
The question for consideration, therefore, on appeal is whether thefailure on the part of the Magistrate to read out or, to use the languageof the Code, pronounce the reasons for the conviction, is fatal to theconviction.
Section 190 of the Criminal Procedure Code prescribes that where theMagistrate finds the accused guilty he should forthwith record a verdictof guilty and pass sentence upon him according to law and shall recordsuch sentence. The learned Magistrate in this case complied with thoseprovisions by recording the verdict and sentencing the accused immediate-ly at the conclusion of the trial. The verdict is, however, treated assomething apart from the judgment. The necessity for a judgmentis to be inferred from the provisions of section 304 of the Code. I say“to be inferred ”, because there is no express provision which requiresthat the Magistrate—I shall confine my remarks to summary trials beforea Magistrate—should write out a judgment or the stage at which he is-required so to do. Section 304 of the Code assumes that a judgmentwould be written out by a Magistrate and proceeds to set out the stageat which it should be pronounced. That the judgment is required to bepronounced after the verdict is clear from the section—either immediatelyafter the verdict was recorded or at some subsequent time.
NAGAX.INGAM J.—Thiagarajah v. Annaikoddai Police
111
Section 304, however, does not make it equally clear whether the judg-ment is to precede the sentence or follow it. De Silva J. in Henricus v.Wijesuriya1 took the view that “ the judgment must be contemporaneous:with the sentence and that the sentence forms in fact a part of thejudgmentFor the purpose of this case it is unnecessary to go into this
question.
The two points that have been pressed on this appeal are, firstly, thatthe judgment should have been pronounced in open Court and, secondly,,that the accused person should have been required to attend Court to hearjudgment delivered. The term “ judgment ” is not formally defined inthe Code but its essential characteristics or qualities are set out in section306. Confining the requirements of a judgment to a case of conviction,,it would appear that (1) it should specify the offence, if any, of which,,and the section under which, the accused is convicted, (2) (a) the pointor points for determination, (6) the decision thereon, (c) the reasons for thedecision, and (3) the punishment to which the accused is sentenced.Section 306 also requires that the judgment should be dated and signedby the Magistrate in open Court at the time it is pronounced.
The learned Magistrate after he had written out the judgment neitherpronounced it nor signed and dated it in open Court, nor was the accusedperson present to hear judgment delivered—this is not a case where thepresence of the accused could have been dispensed with. Learned CrownCounsel sought to have the conviction affirmed by invoking to his aidsection 425 of the Criminal Procedure Code which provides, inter alia, thata judgment should not be reversed or altered on appeal on account of anyerror, omission or irregularity in the judgment unless such error, omissionor irregularity or want has occasioned a failure of justice. His contentionwas that, at best, the failure to pronounce the judgment after it had beenwritten out and to sign and date it in open Court in the presence of theaccused amounted to an irregularity in the judgment which would becured by the provisions of the section and would therefore not furnishan adequate ground to the appellant to have the conviction set aside.
In support of his contention the case of Tissera v. Daniels 2 was quotedby him, and he particularly relied upon the quotation therein made of ajudgment of Soertsz, J. in S. C. No. 646-—M. C-, Trincomalee, No. 11,304,where that learned Judge held that the total absence of a judgmentamounted to an irregularity of procedure which did not vitiate theconviction. But Dias J., to whom the earlier ease of Henricus v. Wije-sekera (supra) had not been cited, came independently to the conclusionthat the facts of the case he was dealing with were far removed from thosewhich were before Soertsz J. and quashed the conviction. He Silva J.,however, held in the case of Henricus v. Wijeselcer'a (supra) that the non-compliance with the provisions of section 304 by a Magistrate wassufficient ground to set aside the conviction. It seems to me that thequestion whether in any particular case non-compliance with theprovisions of sections 304 and 306 amounts to an irregularity or tosomething more in the nature of an illegality which must be held to vitiatethe conviction must depend on the facts of each case. Had the learned1 (1946) 47 N.. L. R. 378.* (1948) 49 N. L. R. 162.
112
• Ismail- v. Herft
Magistrate written out his judgment and then in pronouncing the judg-ment referred to the main points of his findings, such a case, I do notdoubt, would only amount to an irregularity and an appellate Courtwould not interfere in those circumstances. But where a Magistratewithout writing his judgment indicates orally to the accused the gistof what he proposes to embody in his judgment, there is no guaranteethat the language employed by him in his judgment would not havesuffered some modification compared with that employed in orallyindicating to the accused his reasons.
The essence of a judgment, to my mind, consists in the reasons whicha Magistrate is called upon to give for taking the view he tabes eitherfor convicting or acquitting an accused person. That being an integralpart of the judgment, I do not think a failure to give reasons in writingbefore pronouncing it can be said in all cases to amount to an irregularityonly which could be covered by section 425 of the Code. In this casethere were two versions placed before the Magistrate, the defence of theaccused being in the nature of an alibi. I would, concurring in the viewexpressed by my brother Idas J. in the case of Tissera v. Daniel (supra),hold that the failure passed beyond the bounds of what may be describedas an irregularity within the meaning of section 425 of the CriminalProcedure Code.
In this view of the matter, the conviction cannot be allowed to stand.I quash the conviction and send the case back for a new trial beforeanother Magistrate.
Re-trial ordered.