(CRIMINAL REVISION)

SUDAN GOVERNMENT v. ABDEL RAOUF RIZGALLA HAMID

AC.CR-REV-140-1966

Principles

·  Criminal Procedure—Judgment written after pronouncement of sentence—Conviction and (entence are correct if accused is not prejudiced by the technical irregularity in procedure—Code of Criminal Procedure, s. 261

When judgment is written after pronouncement of sentence, conviction will not automatically be quashed unless the accused is prejudiced by such omission; because according to Code of Criminal Procedure, S. 261, technical irregularity in procedure alone does not invalidate finding and sentence properly decided.

Judgment

.Advocate: Mohamed Bashir Abdel Rahman for the accused

Abdel Magid Imam J. June 26, 1966: —After having carefully read the record of this case I see no reason to intervene with the findings of guilty entered against accused Abdel Raouf Rizgalla under Road Traffic Ordinance. 5. 24 and Penal Code. s. 2S6, sentence.

The pettion, which has been forwarded on behalf of the accused, rests on two points:

(a) That the trial judge pronounced sentence on January 30, 1966, and wrote his judgment on May 5, 1966, i.e., that no proper written judgment was ready within the meaning of Code of Criminal Procedure, s. 243, at the time sentence was pronounced, contrary to Code of Criminal Procedure, s. 242;

(b) that the finding ‘ against the weight of evidence.

The sentence of the law that governs the situation under (a) above, is Code of Criminal Procedure, SS. 242 and 243. Section 242 reads:

“The judgment in every trial in a criminal court shall be written in English or in Arabic, and that jud shall be pronounced or the substance of it explained in open court either immediately after the termination of the trial or at some subsequent time of which due notice shall be given.

Section 243 (i) reads:

“Subject to the provisions as to summary trials contained in Chapter XVI, every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the presiding magistrate in open court at the time of pronouncing it.”

These two sections must be read with Code of Criminal Procedure. S. 261, which directs in general terms that irreguiarit in procedur€ should not be allowed to vitiate a finding or a sentence.

In India, section 537 has the same effect. The criterion in this particu circumstance is that the accused must not in fact be prejudiced by such procedural error or omission.

“The question whether such error or omission has, or has not ended in a failure of justice is again the question of fact and it will depend on the facts of each case, and has to be proved by the person raising it.          . . . In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused, and if there is any reasonable or substantial doubt about whether he was, or was reasonably likely to have been misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere, but if on a careful consideration of all the facts, prejudice, or a reasonable and sub stantial likelihood of it, is not disclosed, the conviction must stand.”

III Sohoni, Code of Criminal Procedure (IS’th ed., 1962), p. 31441—31442.

Again—see 11 Sohoni, Code of Criminal Procedure (15th ed., N pp. 2000-2001

“it is a material irregularity to pass a sentence before recording judgment, but unless it hac occasioned a failure of justic the conviction need not be quashed.Whether ajudgment delevered after asenteences is illegality or a mere irrigularity must depend on the cirmstancesof each case. In this case the high court refused to interfer with the gudgment of the Presidency magistrate as the accused had not been prejudiced.

I think the accused in this case was given fair trial and his witnesses were heard and I do not think he was prejudiced by the omission of writing the judgment at the time of passing sentence. I also agree that the evidence supports conviction in spite of the fact that some of accused s defence witnesses stated that his speed was normal; for normal here must be adjudged a to the prevailing circumstances. A reasonable man ought to have foreseen the possibility of passengers of the other bus k’ccending from it, crossing the road and walking to the village in the opoosire direct:on. and ought therefore to have conducted hims n uch a way as to be able to stop his car in order to avoid colliding with them.

The papers are returned.