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KULUGAMMANA v. BABA SINHO.P. C., Hatton, 29,587.
Ordinance No. 1C of 1S65, s. S3—Meaning of “ imprisonment ”—Interpretationof statute—Criminal Procedure Code, s. 353—Case stated by PoliceMagistrate.
In laws imposing punishment, the more lenient interpretation is to bepreferred to the more severe.
Hence, the term “ imprisonment ” used in section 53 of the OrdinanceNo. 16 of 1865 must be taken to mean simple imprisonment.
If a special case is stated by a Police Magistrate under section 353 ofthe Criminal Procedure Code, it should be set down for argument andnotice of the day should be given by the Registrar to the parties andthe Magistrate.
N this case the Police Magistrate after convicting the accusedof wantonly and cruelly beating a cow, an offence punishable
by section 53 of the Ordinance No. 16 of 1865, and sentencinghim to one month’s rigorous imprisonment, recorded as follows: —
" I have not charged the accused under the Cruelty to AnimalsOrdinance, No. 7 of 1862, for a conviction thereunder carriespunishment by fine only, or simple imprisonment in default ofpayment, which is manifestly inadequate to meet this case. Thebrutality practised by the accused deserves, I consider, exemplarypunishment, but I understood it is doubtful whether imprison-ment, where no kind is specified (as in the section of the PoliceOrdinance under which the charge is laid), can legally berigorous.
“ I will therefore state a case to the Supreme Court under theprovisions of section 353 of the Criminal Procedure Code.
“ I so inform the accused and admit him to bail.”
The case stated by the Police Magistrate was that for wantonlyand cruelly beating a cow, the property of one Kidir Mohideen, anoffence punishable under section 53 of the Ordinance No. 16 of1865, he had found the accused guilty, but was in doubt whether theaccused was liable to be punished with rigorous imprisonment.The Magistrate said: “ I being of opinion that ‘ rigorous imprison -” ment ’ is ‘ imprisonment ’ under section 53 of the Ordinance“ No. 18 of 1865, held that the accused was liable to be punished“ with hard labour. The question for the opinion, of the Supreme“ Court is whether the said determination was correct in point of“ law, and what should be done in the premises.”
There was no appearance of counsel.
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1900.The Supreme Court remitted the case to the Police Magistrate,
January 17. 17th January, 1900. Lawrie, J.—'
The 353rd section contemplates that the special case shall beset down for argument in the Supreme Court.
Notice for the day fixed for the argument should be sent bythe Registrar to the Judge or Magistrate and to the parties (com-plainant and accused).
In the present case, the Magistrate ought to have framed acharge not under No. 16 of 1865, but under the Ordinance No. 7of 1662, which makes cruelly beating an animal an offencepunishable by a fine not exceeding £5.
In answer to *he question put by the Police Magistrate, I saythat “ imprisonment ” means simple imprisonment. In all la.wsimposing punishment and penalities, the more lenient is to bepreferred to the more severe interpretation. Taking this view, Ido not think it necessary to give notice of a day for argument.
The Magistrate would exceed his powers'1 if he added in hissentence anything to the words of the Ordinance. All he can dois to sentence to fine or imprisonment, leaving to the executive todecide what “ imprisonment ” means. In my opinion (as I havesaid), it means the most lenient kind of imprisonment known tothe law, but whether it doe$ or not, the Magistrate may not in hissentence do more than the Ordinance permits, viz., to sentenceto “ imprisonment.”
In the Police Ordinance, No. 16 of 1865, different punishmentswere prescribed for different offences, e.g., “ imprisonment ” bysections 53, 54, 68; “ imprisonment at hard labour ” by section 87;“ imprisonment with or without hard labour,” by sections 70, 73,75, &c.; fine only by sections 65, 67, 76, &c. Each of these differsfrom the other, and the term “ imprisonment ” cannot thereforehe construed to mean or include “ imprisonment ” at [or " with ”]hard labour,” when such words of aggravation of the punishmentof incarceration are not expressly enacted. The maximum punish-ment under section 53 is therefore a fine of Ks. 50, or simoleimprisonment for three months. I therefore agree in my brother’sanswer to the question proposed in the special case.
KULUGAMMANA v. BABA SINHO