Vethanayagam V. Inspector Of Police, Kankesanturai

1949     Present : Basnayake J.

VETHANAYAGAM, Appellant, and INSPECTOR OF POLICE,
KANKESANTURAI, Respondent

S. C. 1,484-M. C. Mallakam, 5,660

Criminal Procedure Code-Recording of verdict-Postponement-Illegality or irregularity-Sections 190 and 425.

A magistrate should record his verdict immediately after taking the evidence in terms of section 190 of the Criminal Procedure Code. The failure to do this is an illegality and not a mere irregularity and is not therefore curable under section 425.

Samsudeen v. Suthoris (1927) 29 N. L. R. 10 dissented from.

APPEAL from a judgment of the Magistrate, Mallakam.

R. L. Pereira, K.C., with C. S. Barr Kumarakulasinghe and Sivagurunathan, for accused, appellant.

A. C. M, Ameer, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

January 31, 1949. BASNAYAKE J.-

The appellant and seven others were charged with offences punishable under sections 140, 141, 433, 434 and 409 of the Penal Code. The proceedings commenced on April 12, 1948. The case for the prosecution was closed on September 25, 1948. At the conclusion of the evidence for the defence on October 15, 1948, the learned Magistrate made-the following 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 each of the said seven counts, in all a fine of Rs. 70. I acquit the other accused."

At the same time the learned Magistrate indicated that he would pronounce his reasons on October 22, 1948, and on that day they were read in open court in the presence of the accused.

Learned counsel for the appellant submits that the learned Magistrate should have recorded his verdict on October 15 and that in postponing it for October 20 he has acted in violation of section 190 of the Criminal Procedure Code. He submits that that violation of the statute is an illegality which vitiates the conviction.

Section 190 reads:

" If the Magistrate after taking the evidence for the prosecution and defence and such further evidence (if any) as he may of his own motion cause to be produced finds the accused not guilty, he shall forthwith record a verdict of acquittal. If he finds the accused guilty he shall forthwith record a verdict of guilty and pass sentence upon him according 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[(1927) 29 N. L. R. 10.] that the verdict need not be recorded forthwith after taking the evidence. I find myself unable to agree with the opinion expressed by Dalton J. in that case. He seems to take the view that the Magistrate may form his decision as to the guilt or innocence of the accused at any time after the taking of the evidence is over, but at the same time he regards it essential that the verdict must be recorded forthwith after the finding of the verdict, and without any time elapsing between the two. This seems to me, and I say so with the gre

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