Attorney-General V. Lingam Chettiar

1958 Present: Weerasooriya, J.

THE ATTORNEY-GENERAL, Applicant, and S. LINGAM
CHETTIAR, Respondent

S. C. 236-Application in Revision in M. C. Ratnapura, 65908

    Criminal procedure-Accused convicted per incuriam-Power of Magistrate to vacate conviction and sentence on same day-Power of Supreme Court to restore, in revision, the finding of conviction-Criminal Procedure Code, 8s.188 (1), 301 (1) (4), 357 (3).

The proviso to section 306 (4) "f the Criminal Procedure Code does not always enable a Magistrate who has convicted an accused person per incuriam to reverse the judgment on a consideration of matters that come to light before he adjourns for the day.

On June 17, 1958, the accused was convicted on his pleading guilty to the -charge framed against him. Later, in the course of the same day, it was pointed out to the Magistrate that the Emergency Regulation under which the accused Wag charged had been rescinded. Thereupon the Magistrate vacated the earlier order convicting the accused as having been made per incuriam, and discharged the accused. The plea of guilty had not been withdrawn by the accused at the time when the Magistrate made the second order discharging the accused.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 Magistrate purporting to rectify the earlier order.

Held further, (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 discharging the accused as long as the plea of guilty stood.

(ii) that the power of the Supreme Court to restore, in revision, the conviction and sentence was not contrary to the provisions of section 357 (3) of the Criminal Procedure Code.

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. WEERASOORIYA, J.- -

In this case the accused was charged on the 3rd June, 1958, with having on that day committed a contravention of an Emergency Curfew order made under regulation 17 of the Emergency (Miscellaneous Pro- visions and Powers) Regulations published in Government Gazette Extraordinary 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 sentenced .him to pay a fine of Rs 500 in default to 3 weeks' simple imprisonment.

This order of the Magistrate is signed by him and constitutes the judgment !in the case. It would appear that later in the course of the day certain representations were made to the Magistrate by Counsel for the accused in consequence of which the Magistrate made the following order :-

" Mr. Wirasekera for the accused brings to my notice that the regulation under which the accused is charged today has been rescinded by the order published in Government Gazette of 7.6.58 (Emergency Order No.2).

I cannot find any saving provision in respect of offences committed before the date of the latest regulation.

The position is that the regulation under which the accused has Queen charged has been rescinded.

I vacate my order sentencing the accused to pay a fine of Rs 500 in default sentencing the accused to a term three weeks S. I., as having 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 17th June, 1958. Under section 306 (1) of the Criminal Procedure Code a judgment in a criminal case is required to be written by the District Judge or Magistrate who heard the case and to be dated and signed by him in open Court at the time of pronouncing it.

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