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MENDIS v. CORNELIS et al.D. C., Tangalla, 12,139.
Charges of theft and house-breaking for theft—Separa'.e offences—Separatepunishments—Power of District Court—Penal Code, ss. 440 and369—Criminal Procedure Code, s. 67.
It is open to the District Court to pass two separate sentencesfor the offences of house-breaking with intent to commit theft andof theft.
Meedin v. Kirihatana (2 N. L. R. 167) considered and doubted.
TN this case, the three appellants with three others were broughtup before the Police Magistrate of Tangalla on two charges ofhouse-breaking for theft and theft, when the Magistrate, who wasalso District Judge, exercised the powers conferred on him byOrdinance No. 8 of 1896 and tried the case as District Judge.He found the three appellants guilty of each of those offences,and sentenced each accused to three months and six months,respectively, under sections 440 and 369.
W. Pereira, for appellants.
Van Langenberg, for respondents.
Bonser, C.J., quashed the convictions and sentences on theground that the trial was not satisfactorily conducted, and directedthe case to be re-tried before the District Judge with assessors.
Dealing with the argument of the appellants, that if bothcharges were held to be established the District Judge shouldhave punished them only for the principal offence, his Lordshipdelivered the following judgment:—
29th October, 1898. Bonser, C.J.—
An objection on a point of law was taken on the part of theappellants. The accused were charged and convicted of house-breaking with the intention to commit theft and of theft, and they
were sentenced for the first offence to three months’ rigorousimprisonment and for the second offence to six months. It willbe noted that the combined sentence is well within the jurisdictionof the District Court; but it was argued that it was wrong to award. separate punishments for these offences. Reliance was placed onthe case of Meedin v. Kirihatana (2 N. L. R. 157) decided by mybrother Lawbie, where he is reported to have said that a separatesentence for house-breaking by night with intent to commit theftand also for theft committed on the same occasion was contraryto section 67 of the Penal Code. I think there must be somemistake about this, because section 67 has nothing to do witha case of this kind, since theft and house-breaking by nightwith intent to commit theft are distinct offences, although theyoccurred on the same occasion. A man -may break into a houseto commit theft, and may then repent and desist from carryingout his original design. Again, a man may commit theft in adwelling-house without breaking into it. The view I take of itis the view taken by two High Courts of India: the High Courtsof Bombay and Madras. The High Court of Bombay held thatwhen a Magistrate convicted a man of house-breaking by nightto commit theft and of theft in a dwelling-house, and sentencedhim for the two separate offences to a punishment, which in theaggregate exceeded his powers as a Magistrate, he was justified. in so doing, and they held that section 71 of the Indian PenalCode, which corresponds to our section 67, had no application tothe case. That case was followed by the Madras High Court inthe case of the Queen v. Nirichan (12 Madras 36), where the offenceswere house-breaking by night to commit mischief and assault,and mischief and assault. They held that it was legal to(award several punishments for each of those offences.
There is a case reported in 1 N. L. R. 320 decided by my brotherWithers, which, as I understand it, is not inconsistent withthe view I take of the law. All I understand that was decidedthere is that under the circumstances of the case the punish-ment awarded was too severe. It is not only not inconsistent,but distinctly expresses that the law is as I hold it to be,for in that case the accused was convicted of house-breaking bynight and committing theft at the same time. The District Courtawarded two years for the first offence and two for the second.
It was held in appeal that the District Court was competent topass those sentences exceeding in the aggregate the punishmentwhich, in its ordinary jurisdiction, it was competent to inflict,because the offences were distinct offences (see section 18 ofthe Criminal Procedure Code, 1883).
October 29.Bonseb, C. J
MENDIS v. CORNELIS et al