In Re John Mathew
IN RE JOHN MATHEW
SENEVIRATNE, J. (PRESIDENT, C/A) AND JAMEEL. J.C.A. 1307/85-M.C. MALIGAKANDE 55238.NOVEMBER 22, 1985.
Children and Young Persons Ordinance, section 23 (2) – Default sentence ofimprisonment on young person.
A young person should not be ordered to be imprisoned for any offence or committedto prison in default of payment of fine unless the Court certifies that he is of so unruly acharacter that he cannot be detained in a remand home or certified school or that he is.so depraved of character that he is not a fit person to be so detained.
Revision by Appeal Court of sentence imposed by the Magistrate of MaUgakandeMagistrate's Court.
Nihal Jayasinghe, S.C.C. for Attorney-General.
T. B. S. Wijeyakoon. Probation Officer, Colombo-present.
November 22, 1985.
SENEVIRATNE, J. (President, C/A)
This case record was called by this Court from the Magistrate's Court,Maligakande as the Commissioner of Prisons has through the Ministryof Justice brought to the notice of this Court that a child under 16years has been sentenced to jail, and that in terms of section 29 ofthe Rules promulgated in the Prisons Ordinance Subsidiary Legislationof Ceylon, Volume I, Chapter 54 this accused cannot be admitted toprison. Rule 29 states "that the Commissioner of Prisons should bringto the notice of the Governor without delay the case of anyperson under the age of 1 6 years who may be sentenced toimprisonment and who should in his opinion be discharged". TheCommissioner of Prisons has got the accused examined by the PrisonsMedical Officer and on the report filed of record he has certified thatthis accused is less than 1 6 years old. Giving the benefit of the doubtto the accused the court has to proceed on the basis that the accusedis about 1 5 years old.
Sri Lanka Law Reports
11986) 1 Sri L. 8.
The accused John Mathew has been charged in the Magistrate'sCourt, Maligakande in that on 20.9.1985 he had possessed 16drams of unlawfully manufactured liquor, an offence under the ExciseOrdinance. This accused has been produced in court on 4.10.1984and the charge had been informed. He has pleaded guilty to thecharge. The learned Magistrate has fined the accused Rs. 700/- andimposed a default sentence of 2 1/2 months imprisonment in defaultof payment of fine. The Court called for this record, to consider by wayof revision the sentence passed. It has been established that theaccused Mathew is a boy under 15 years of age and comes within theterm of young person under the Children and Young PersonsOrdinance Chapter 23. Section 23 (2) states that "a young personshall not be ordered to be imprisoned for any offence or be committedto prison in default of payment of fine unless the court certifies that heis of so unruly character that he cannot be detained in a remand homeor certified school or that he is so depraved of character that he is nota fit person to be so detained". The learned Magistrate has not at alldirected the mind of the court to this provision of this special lawdealing with young persons. The fine imposed is itself an excessivefine, (as it has happened in this instance, this accused cannot pay thefine) and he seems to be a first offender. The learned Magistrateshould have made use of the other salutory provisions of the Childrenand Young Persons Ordinance which sets out different modes ofdealing with a young person found guilty of an offence. The courtnotes with regret that in passing sentence the learned Magistrate hasnot at all directed attention to the provisions of law dealing with anaccused of this age. At sight the accused appears to be about 15years of age even at present. If the learned Magistrate had doubtregarding the age of the accused the Magistrate ought to have got theaccused examined by the Judicial Medical Officer. Further the lawspecifically provides that an accused of this age should be detained ina Remand Home or Certified School and not in the prison meant foradults.
The ultimate result of the learned Magistrate ignoring the provisionsof law dealing with young persons, has been that this accused who isabout 1 5 years of age has spent his jail term in the prison meant foradults, i.e. Welikada Prisons and is due to be discharged tomorrowafter serving one month and eighteen days. The sentence passed onthe accused is pro forma set aside which of course is not aconsolation to this boy who has spent this period of time in an adult
In Re John Mathew (Seneviratne J.)
prison. On being questioned by Court, the accused states that he isselling unlawfully manufactured liquor for a Mudalali and that he wascaught in the act of transporting the same. This is, in the view of thisCourt, a fit instance in which the Magistrate should have considered indealing with the accused under the Probation of the OffendersOrdinance.
The jail sentence imposed on the accused is pro forma set aside andthe Prisons is directed to immediately release this accused in respectof this case. If he is to be detained in respect of any other case, thePrisons is ordered to produce this accused in the Magistrate's Courtwhere any case is pending, forthwith, and obtain an order to detainthis accused in the Remand Home for Young Persons pending the trial.
JAMEEL, J. – I agree.
Jail sentence pro forma set aside.