( 33 )
Present: Lyall Grant J.
REX v. AMERESEKEREC. (Grim.) Colombo, 7,771
Indictment—Amendment of particulars of offence—Motion for enhance-ment of sentence—Regularity of conviction—Criminal ProcedureCode, s. 171.
Where in a trial before the District Court the indictment was.before the conviction, altered with respect to the particulars ofthe offence with which the accused was charged,—
Held, that the conviction was good, unless the accused wasmisled in his defence by the error in the particulars of the offencecharged.
On a motion for the enhancement of a sentence the accused hasthe right to show cause against the conviction.
A PPLICATION to revise a conviction by the District Judgeof Colombo.
W. Jayewardene, K.C. (with R. L. Pereira), in support.
J.E. M. Obeyesekere, C.C., for the Crown.
February 10, 1927. Lyall Grant J.—
This is an application to the Supreme Court to exercise its powersof revision in respect of a case which was tried before the DistrictJudge of Colombo. The person on whose behalf the applicationis made was convicted in the District Court of Colombo onJanuary 22, 1926, of the offence of cheating punishable undersection 403 of the Ceylon Penal Code.
am asked in the first place to issue notice of the application onthe Attorney-General in order that he may appear and argue anypoints which may arise. The powers of the Supreme Court inrevision are of an extensive and peculiar nature. No palrty has aright to be heard either personally or by pleader before the SupremeCourt in exercising its powers of revision. The Court may, how-ever, if it so desires, hear any party, and if I were of opinion thatsubstantial grounds had been put forward to justify the Courtin altering the finding or sentence, I should probably think itadvisable that the prosecution should be given an opportunity ofappearing.
( 34 )
The reason advanced to induce this. Court to exercise its powersof revision is that the facts set forth in the indictment were notproved, but that the accused was convicted on proof of facts whichmaterially differed from those set out in the indictment.
From the judgment of the learned District Judge it appears thatafter the evidence had been recorded at the trial Counsel for thedefence took the point that any offence that might have beencommitted was not either of the offences charged in the indictment.
The District Judge agreed that the indictment was defective, buthe was of opinion that no prejudice would be occasioned to theaccused by bis conviction under the indictment as it stood.
Whether the learned District Judge was right in so decidingis a question to which I shall refer presently, but in the meantimethere are one or two preliminary points on which I wish to offersome observations.
If the accused considered tKat he was improperly convicted,he had a right of appeal. But no appeal was entered. He nowexplains that he wished to appeal but that he was advised not todo so in view of the fact that the sentence was comparatively light.The accused was a man of good education and position, convictedof a serious offence. He was advised by skilled Counsel, who were-quite aware of the possibility of raising the' objection which he now'seeks to take, and who had already raised it at the trial. It isclear that he acquiesced in the decision of the District Court.Some time later, however, an application was made by the Attorney-General to the Supreme Court for a revision of the proceedingswith a view to enhancing the sentence. The case came up beforemy brother Dalton, and the accused was represented. Theseproceedings gave him an opportunity to bring before the noticeof the Court any inconsistency between the indictment and thefacts proved. The result of that application was that the sentenceof imprisonment was enhanced.
It was after this enhancement of sentence that the presentapplication for further revision was made.The application was
made before my brother Dalton, who thought it better that itshould go before another Judge, but he then stated that on theprevious application he clearly understood Counsel who appearedfor the accused before him to state that he could not question th.*propriety of the conviction either on the facts or on the law.
It was suggested that on a motion for enhancement of sentenceit is not open to the accused to raise the question of the legalityof the sentence, and reference was made to The Emperor v. Manga!Naran.1 I do not think that this case supports the contention.The judgment shows that in India the accused has a right to showcause against his conviction on a motion for enhancement of sen-tence even where an appeal on the merits has already been dismissed.
1 I. L. 49 Bom. 450.
( 35 )
It was suggested that this power was only given to the IndianCourts by a recent addition to the Indian Criminal Procedure Code.I am not satisfied that this is. the case, nor am I satisfied that priorto the enactment of the addition in question the Indian CriminalProcedure Code was identical with ours. I can find nothing in ourCode which debars the Court when exercising its powers of revisionfrom considering anything that may be urged against a conviction.
I was also referred to the case of The EmpeTOi* v. BankatramLachiram/ where at page 566 Jenkins C.J. deprecated an inter-pretation of the law which would tend to limit the appellate orrevisionary powers of the Court. With this'dictum, if I mayrespectfully say so, I entirely agree.
Its only application to the present case, however, would be tocounteract any suggestion that the Court is limited in exercising itsdiscretion, and so far as I am aware no such suggestion has beenmade.
In the circumstances set out above the Court will be very slow toreopen the question of the correctness of the original decision, unlessit be shown that an irregularity has occurred which has seriouslyprejudiced the accused.
I now proceed to inquire into the alleged irregularity. Thecharges set forth in the indictment are—
That on or about May 14, 1925, at Colombo he did deceive
the Government Agent, Western Province, by falselyrepresenting to him that the petitioner was the owner ofthe land called " Tekkewatte ” situated at Hamvella, andthereby dishonestly induced the said Government Agent topurchase the said land and to deliver to the petitioner asum of Rs. 4,102.49, and that thereby he committed theoffence of cheating, punishable under section 403 of theCeylon Penal Code ; and
That at the time and place aforesaid the petitioner did
deceive the said Government Agent, Western Province, byfalsely representing to him that the petitioner was the/person interested in the said land “ Tekkewatte/' andthereby dishonestly induced the said Government Agentto acquire the said land under the Land AcquisitionOrdinance of 1876 and to deliver to the petitioner a sumof Rs. 4,102.49, and that he thereby committed the offenceof cheating, punishable under section 403 of the CeylonPenal Code.
After the evidence had been led the District Judge came to theconclusion that the accused had not induced the Government Agenteither to purchase the laud or to acquire it under the LandAcquisition Ordinance.
i1. L. R. 28 Bom. 533.
( 36 )
1987. The District Judge then suggested to Grown Counsel that thet.vat.t. indictment should be amended by the omission in count one of theGraot? J. words “ to purchase the land and,” and in count two by the omissionRtxv. of the words “ to acquire the said land under the Land AcquisitionAmereeekere Ordinance of 1876 and.” Crown Counsel, however, did not agreeto the proposed amendment, and Counsel for the defence statedthat he would object to any amendment in the indictment.
The Distict Judge found as a fact that the accused had notinduced the Government Agent to purchase the land or to acquireit under the Land Acquisition Ordinance, but he convicted theaccused “ in that he did on or about May- 14, 1925, at Colombodeceive the Government Agent by falsely representing to him thathe was the owner of the land in question, and that he therebydishonestly induced the said Government Agent to deliver to himthe sum of Rs. 4,102.49 and that he thereby committed the ofEenceof cheating, punishable under section 403 of the Ceylon Penal Codeand he found the accused guilty under the second count of theindictment with a corresponding amendment.
On the view of the evidence taken by the District Judge (fromwhich I see no reason to differ), it is clear that an error was madein stating the particulars required to be stated in the charge.
Section 171 of the Criminal Procedure Code provides that “.noerror in stating either the offence or the particulars required to bestated in the charge …. shall be regarded at any stageof the case as material, unless the accused was misled by such error
In the present case there was no error in stating the offence.The accused was charged with cheating, and the only question iswhether the accused was misled by the error in stating the parti-culars. Nothing has been put forward to show, or even to suggest,that the accused was misled.
On the question of an accused person being prejudiced by defectsin the charge made against him Counsel quoted several cases. Thefirst was the case of The Empress v, Vaimbilee.1 The question inthat case was whether a prisoner who pleaded guilty to a chargeof murder clearly understood the meaning of the word “ murder ”as used in the Indian Penal Code. The Court followed the prin-ciple that before a plea of guilty is accepted a Judge should besatisfied that the prisoner clearly understands the nature of theplea.
In Goore v. James Appu,2 it was held by Bertram C.J. that wherea charge is contained in a warrant or in a report, failure to havea separate written charge may amount to nothing move than amere irregularity, and ” it is the duty of the Appeal Court to inquirewhether in any particular case the irregularity has led to a failure1 J. L. R. 5 Cal. 826.* 22 N. L. R. 206.
( 37 )
of justice; and anything which is proved prejudicial to the interestsof the accused in tjhe trial should be considered to have led to afailure of justice/’
Wood Benton J. in Qitnewardene i?. Pakeer Lebbe 1 held that aformal charge was necessary in all cases in which the CriminalProcedure Code requires it.
The only bearing these cases have on the present application isthat they are examples of the principle that the accused must notbe prejudiced either by the total lack of a formal charge or by anerror or omission in the charge.
If one were of opinion that the accused had been prejudiced inany way by the fact that he was proved to have committed theoffence of cheating in a rather different way from that set forth inthe indictment, it would be necessary to order a new trial on anamended indictment.
The facts proved have not been seriously disputed, and noevidence was led for the defence. There is nothing to suggestthat if the accused were retried on an amended indictment liewould have any defence to offer.
I think the District Judge acted coi*rectly in treating the error
in the particulars as immaterial.
No sufficient reason has been adduced to convince me that theCourt should institute any proceedings by way of revision in thiscase, and the application is accordingly refused.
* 26-N. L. R. 183.
REX v. AMERSEKERE