047-NLR-NLR-V-50-VETHANAYAGAM-Appellant-and-INSPECTOR-OF-POLICE-KANKESANTURAI-Respondent.pdf
BAKNAYAJKE J.—Veihanayagam v. Inspector of Police, Kanlcesanturai 185
1949Present : Basnayake J.VETHANAYAGAM, Appellant, and INSPECTOR OF POLICE,KANKESANTURAI, Respondent
<S. C. 1,484—M. C. Mallalcam, 5,660
Criminal Procedure Code—Recording of verdict—Postponement—Illegality orirregularity—Sections 190 and 425.
A magistrate should record his verdict immediately after taking theevidence in terms of section 190 of the Criminal Procedure Code. Thefailure to do this is an illegality and not a mere irregularity and is nottherefore curable under section 425.
Samsvdeen v. Suthoris (1927) 29 N. L. R. 10 dissented from.
ApPEAL from a judgment of the Magistrate, Mallakam.
It. L. Pereira, K.C., with C. S. Barr Kumarakulasinghe and Sivaguru-nathan, for accused, appellant.
A. C. M. Ameer, Croton Counsel, for the Attorney-General.
Cur. adv. vult.
January 31, 1949. Basnayake J.—
The appellant and seven others were charged with offences punishableunder sections 140, 141, 433, 434, and 409 of the Penal Code. Theproceedings commenced on April 12, 1948. The case for the prosecutionwas closed on September 25, 1948. At the conclusion of the evidencefor the defence on October 15, 1948, the learned Magistrate made thefollowing order: “ Defence closed. Verdict 20/10.” On October 20,1948, the learned Magistrate made the following order :
“ I find the first accused guilty .on counts 1, 2, 3, 4, 5, 6, and 9.I convict him on the said counts. I impose a fine of Rs. 10 on eachof the said seven counts, in all a fine of Rs 70. I acquit the otheraccused.”
186 BASNAYAKE J.—Vethanayagam v. Inspector of Police, Kankesanlurai
.At the same time the learned Magistrate indicated that he wouldpronounce his reasons on October 22, 1948, and on that day they wereread in open court in the presence of the accused.
Learned counsel for the appellant submits that the learned Magistrateshould have recorded his verdict on October 15 and that in postponing itfor October 20 he has acted in violation of section 190 of the CriminalProcedure Code. He submits that that violation of the statute is anillegality which vitiates the conviction.
Section 190 reads :
“ If the Magistrate after taking the evidence for the prosecutionand defence and such further evidence (if any) as he may of his ownmotion cause to be produced finds the accused not guilty, he shallforthwith record a verdict of acquittal. If he finds the accused guiltyhe shall forthwith record a verdict of guilty and pass sentence upon himaccording to law and shall record such sentence.”
It is submitted by learned Crown Counsel on the authority of the case•of Samsudeen v. Suthoris 1 that the verdict need not be recorded forthwithafter taking the evidence. I find myself unable to agree with the opinionexpressed by Dalton J. in that case. He seems to take the view that theMagistrate may form his decision as to the guilt or innocence of theaccused at any time after the taking of the evidence is over, but at thesame time he regards it essential that the verdict must be recordedforthwith after the finding of the verdict, and 'without any time elspsngbetween the two. This seems to me, and I say so with the greatestTespeet, an impractical view of the section. The finding of the verdictis a mental process and it is only when the Magistrate declares hisdecision that it can be known that that mental process is over. If thefinding need not be declared in court at the end of the evidence, and anyperiod of time may be taken to arrive at the finding, it will he almostimpossible to ascertain when the finding was actually reached in order totest whether it was forthwith reduced to writing in the form of a verdict.The Magistrate himself may not be able to say exactly at what point oftime in his own mind he formed the conclusion that the accused is guiltyor not. There are other reasons why the view that the verdict must berecorded immediately upon the termination of the taking of the evidenceis to be preferred. The section fixes the point of time at which theMagistrate has to make his finding, viz., after taking the evidence for theprosecution and defence, and such further evidence (if any) as he mayof his own motion cause to be produced. There is nothing in the sectionwhich supports the view that the finding of acquittal or guilt may bemade at any time after the taking of evidence is over. The word “ after ”unqualified as it is in this context means immediately after. The findingof acquittal or guilt must therefore be declared in open court immediatelyafter the evidence is concluded. The section requires that that findingmust be forthwith reduced to writing in the form of a verdict of acquittalor guilt as the case may be.
(1927) 29 N. L. R. 10.
BASNAYAKF. J.—Vethanayagam v. Inspector of Police, Kankesanturai 187
The earlier decisions of this Court do not support the view taken byDalton J. In the case of Venasy v. Velan 1 decided in 1895 under theCode of 1883 Bonser C.J. says :
“ Now, I have already stated in another case that I think it mostdesirable that Magistrates and District Judges should state their findingas to the guilt or innocence of the accused immediately at theconclusion of the trial, and that, if the impression left upon their mindsby the prosecution, after hearing all the evidence, is so weak andunsatisfactory that they are unable to say whether they consider theaccused to be guilty or not, they should give the accused the benefitof the doubt and acquit.”
These observations were made at a time when the provision of theCriminal Procedure Code corresponding to section 190 was not expressedin such definite and peremptory terms. Section 223 of the CriminalProcedure Code of 1883 reads :
‘ If the police magistrate, upon taking the evidence referred to inthe last preceding section, and such further evidence as he may of hisown motion cause to be produced, finds that no case against the accusedhas been made out, which, if unrebutted, would warrant his conviction,the Magistrate shall record an order of acquittal. Nothing in thissection shall be deemed to prevent a police court from acquitting theaccused at any previous stage of the case, if, for reasons to be recordedby the police magistrate, he considers the charge to be groundless.”
In the case of The Queen r. Kiriya 2 Bonser C.J. gave expression tosimilar sentiments in commenting on the failure of a District Judge to. record his verdict immediately upon the termination of the trial. Hisremarks are appropriate to the question under discussion and bearrepetition. It will be useful if I begin by quoting section 275 of the Codein relation to which they were expressed. It reads :
“ When the case for the defence and the prosecutor’s reply (if any)are concluded, and the assessors’ opinion, if the trial has been with theaid of assessors, has been recorded, the court shall proceed to passjudgment of acquittal or conviction. If the accused person is con-victed, the court shall proceed to pass sentence on him according tolaw.”
It wdll be seen that the section does not expressly require the Court topass judgment immediately upon the termination of the trial. TheJudge took a week to deliver his judgment. Bonser C.J. observes atpage 102 :
“ But there is a serious irregularity in this case which, to my mind,is fatal to the conviction, and that is, that at the conclusion of the trialthe District Judge instead of stating at once his verdict, reserved it fora week. No reason for such a postponement is recorded, and therewas nothing in the facts of the case, as they appear on the record,to justify any such delay. Such a proceeding is, in my opinion, notwarranted by the Criminal Procedure Code. Section 275 which deals
1 (1895) 1 N. L. R. 124.
(1894) 3 S. C. R. 100.
188 BASNAYAKE J.—Vethanayagcm, v. Inspector of Police, KanJcesanturai
with trials by District Judges provides that [here are quoted the-material parts of the section]. By that I understand that forthwithon the conclusion of the trial, the Judge is to state, whether he finds-the prisoner guilty or not guilty of the offenee charged, and that ‘ the-j udgment of acquittal or conviction’ corresponds to the verdict in a jurytrial.”
After discussing section 371 of the Code of 1883, Bonser C.J. proceeds^to say :
“It must be remembered that a District Judge trying a prisonerwithout assessors has to perform a double function. As regards theissues of fact, he is a jury ; as regards questions of law, he is a judge.Now, whoever heard of a jury being allowed to reserve their verdictfor a week ? In my opinion it is the duty of the District Judge, actingas a jury, to record at once, at the conclusion of the trial, his findingon the issues of fact. It may be that he would be justified in reservingto a later day the formal statement of the reasons for his verdict, butthat his duty is to declare and record at once his verdict of guilty or notguilty, is to my mind clear.”
In the course of the same judgment Bonser C.J. says :
“It is in my opinion of the utmost importance that the verdict onwhich depends the prisoner’s liberty, should be given at once, whilethe impression made by the evidence is fresh in the mind of his judge.A subsequent reading over the notes of evidence is by no means the samething as the fresh and lively impressions made by the oral testimonyof the witnesses. A story which looks very cogent and convincing onpaper, may, when heard from the lips of the witnesses, be anj'thing butsatisfactory, and for a judge to wait until the impression made by theconduct and demeanour of the witnesses, which are often moreimportant than their words, has faded from his mind, and nothing isleft, but the dry bones of notes of evidence, is, in my opinion, an.irregularity, which is fatal to the interests of justice.”
It is convenient and appropriate to mention at this point that section214= of our present Criminal Procedure Code is different from thecorresponding provision of the Criminal Procedure Code of 1883 in that itprovides that the verdict shall be recorded by the District Judge “ forth-with or within not more than twenty-four hours ”.
I now come to the cases under the Code of 1898. In RodrigoFernando 1 Withers J. says at page 177 :
“ It is very important that a Magistrate should observe the require-ments of section 190 of ‘ The Criminal Procedure Code, 1898 ’ whichenacts that a Magistrate shall, after taking ‘ the evidence for theprosecution and defence, forthwith record a verdict of acquittal or guiltas he may find ’. If this point had been pressed, I might have had.to send the case back for a re-trial, which would not have been at allsatisfactory.”
1 (1899) 4 N. L. R. 176.
BASNAYAKE J.— Vethannyagam v. Inspector of Police, Kanlcesa-nturai 189
In a later case, P. C. Panadure 9,292 1, Lawrie A.C. J., in quashing theproceedings in that case, expressed the following view :
“ I think it was -ultra vires to give a verdict a month after the trial.
It must be given forthwith.”
These decisions were followed by Pereira J. in the case of AssistantGovernment Agent, KegaXla, v. Podi Sinno et al.2 The case of Peris v.Silva 3 is in my opinion not an authority for the proposition that thefailure to record the verdict as required by section 190 of the CriminalProcedure Code is not a fatal irregularity. In that case although theoral evidence was concluded before the date on which the verdict wasrecorded the case was postponed to enable the accused’s proctor to tendercertain documentary evidence. On the day fixed for the taking of thedocumentary evidence after the documents had been tendered the courtrecorded its verdict of guilty and fixed another day for pronouncing thereasons for the verdict. Wendt J. observes in that connexion : “I amnot prepared to hold that the mere fact of a Police Magistrate’s judgmentnot having been pronounced ‘ forthwith ’ as required by section 190 ofthe Procedure Code, is fatal to its validity. It is at most an irregularityof procedure which, if it has occasioned a failure of justice and not other-wise, may he a ground for reversing or altering the judgment of a com-petent court.” With great respect I wish to say that section 190 doesnot require that the reasons for the verdict should be recorded forthwith.All it requires is that a verdict of acquittal or guilt as the case may beshould be recorded forthwith after the taking of evidence is over. InSah-ul Hamid v. Bamadu * Maartensz A. J. purporting to follow the opinionof Wendt J. in Peris v. Silva {supra) held that the failure to comply withsection 190 of the Criminal Procedure Code was not fatal to the convictionin that case as the delay in recording the verdict had not occasioned afailure of justice. One other case, viz., The King v. Fernando 5 deservesmention although it is a decision on section 214 of the Criminal ProcedureCode. In that case Wendt J. held that the fact that the verdict of aDistrict Judge is recorded after the time within which he is requiredby section 214 to record his verdict does not vitiate the conviction.With great respect I find myself unable to share that view. I prefer tofollow the view taken by Bonser C.J., Withers J., and Laurie A.C.J., inthe earlier decisions I have cited. Enactments regulating the procedurein the courts are as a rule imperative 6 and non-compliance therewith isfatal to a conviction. The fact that the observance of the statuteis a duty imposed on a court or public officer and not on a partymakes no difference to the imperative effect of the enactment. Thecases of Howard v. Bodington 7 and R. v. Chorlton Union8 appear tosupport that view. It is a well-known rule that an accused personcannot waive any procedural statutory requirements even though they
1 {1901) 5 K. L. R. 140.
* {1914) IS AT. L. R. 28.
{1905) 3 Balasingham’s Reports, p. 165.
(1926) 4 Times 145.
(1905) 2 Ralasingham's Reports, p. 46.
Maxwell on Interpretation of Statutes, 9th Edn., p. 377.
(1877) 2 P.D. 203.
(1872) L. R. 8 QJ1. 5.
190 BASNAYAKE J.—Vethanayagam v. Inspector of Police, Kankesanlurai
be intended for his benefit1. Sections 190 and 214 of our CriminalProcedure Code are two such provisions the failure to observe whichcannot be waived.
The only question that still remains to be decided is whether section425 of the Criminal Procedure Code cures the failure to comply withsection 190. But before I discuss that section I think I should record myopinion that in section 190 of the Criminal Procedure Code the word“ forthwith ” means “ immediately after ” and not “ within a reasonabletime after ” the taking of the evidence is over. Discussing the meaningof the word immediately in a similar procedural enactment, Cockburn
C.J. observes 2 :
“ I think that the words c immediately ’ and 1 forthwith ’ mean thesame thing ; they are stronger than the words : within a reasonabletime ’, and imply speedy and prompt action, and an omission of alldelay, in other words, that the thing to be done should be done asquickly as is reasonably possible.”
I now come to section 425. It reads :
“ Subject to the provisions hereinbefore contained no judgmentpassed by a court of competent jurisdiction shall be reversed or alteredon appeal or revision on account—
(а)of any error, omission, or irregularity in the complaint, summons ,
warrant, charge, judgment, or other proceedings before orduring trial or in any inquiry or other proceedings under thisCode ; or
(б)of the want of any sanction required by section 147 ; or(c) of the omission to revise any list of assessors,
unless such error, omission, irregularity, or want has occasioned afailure of justice.”
In the instant case the Magistrate’s failure to comply with the provisionsof section 190 is not an error or omission in the judgment or other proceed-ings. Nor can it be said to be an irregularity in the judgment or otherproceedings. Non-observance of a procedural statute is an illegalityand not a mere irregularity as was laid down in the case of Smurthwaite v.Hannay 3. This view was adopted with approval in the ease of S-ubra-mania Ayya v. King Emperor 4.
For the above reasons I set aside the conviction of the appellant withliberty to the prosecution to institute fresh proceedings against himin regard to the subject matter' of the charges on which he has beenconvicted.
Appeal allowed.
Queen v. Samaranayake and others (1892) 1 S. C. R. 335.
Park Gate Iron Co. v. Coates (1870) L.R. 5 C.P. 634 at 639.
Reg v. Bertrand (1867) LJR. 1 P.C. 520.
The Queen v. The Justices of Berkshire (1879) 48 L. J. JI. C. 137.
2 (1894) A.C. 494 at 501.
4 (1901) 28 Indian Appeals 257.