Kulatungam v. Hussein
1957Present: H. N. G. Fernando, J.T. KULATUNGAM, Appellant, ani M. M. HUSSEIN(Inspector of Police), Respondent
S. G. 617—M. G. Jaffna, 11,224
Sentence—Offender previously convicted—Sentence that may be imposed on him—Prevention of Crimes Ordinance, s. 6.
Where seotion 6 of the Prevention of Crimes Ordinance is utilised to impose asentenoe of two years imprisonment, a Court lias jurisdiction to impose, inaddition, a further term of imprisonment in default of payment of a fine.
• Observations as to the ciroumstanoes in which seotion 6 of the Prevention ofCrimes Ordinance may be utilised.
H. N. G. FERNANDO, J.—-Kulatungam v. Hussein
-iVPPEAL from a judgment of the Magistrate’s Court, Jaffna.
M. M. Kumarahulasingham, for the acoused-appellant.
T. A. de S. Wijesundera, Crown Counsel, for the Attorney-General.Ananda Pereira, Acting Senior Crown Counsel, as amicus curiae.
Cur. adv. vult.
January 24, 1958. H. N. G. Fernando, J.—
The accused in this case was tried by the learned Magistrate of Jaffna,acting under section 152 of the Criminal Procedure Code, on a charge oftheft punishable under section 369 of the Penal Code. Having convictedthe accused the Magistrate imposed a fine of Rs. 50, in default one month’srigorous imprisonment, and also sentenced the accused to a furtherperiod of two years rigorous imprisonment, purporting to act under section6 of the Prevention of Crimes Ordinance. He directed that the sentencesof imprisonment should run concurrently. The only matter whichwas raised by Counsel for the appellant was whether in a case wheresection 6 of the Prevention of Crimes Ordinance is utilised to impose asentence of two years imprisonment, it is proper in addition to imposea further term of imprisonment in default of payment of a fine. I amsatisfied that the default term was properly imposed ; but since the pro-visions of section 6 of the Prevention of Crimes Ordinance are liable tobe misconceived, it may be of assistance to Courts of first instance ifI set out in brief certain observations as to the circumstances in whichthat section may be utilised.
In the first place the substantive provision of section 6 authorises aCourt to sentence an offender for a period not exceeding two years, not-withstanding anything to the contrary in any relevant provision of theCriminal Procedure Code or the Penal Code or any other Ordinance :that is to say, a power is conferred to imprison for two years despite (inthe case of a Magistrate) the limitation imposed by section 15 of theCriminal Procedure Code or (in the case of any Court) the fact that thesection creating the offence provides for a lesser punishment.
But this special jurisdiction is only conferred when the followingconditions are satisfied :—
that there should be a conviction of a crime preceded by two or
more convictions of crimes which have been punished by rigorousimprisonment exceeding one year in the aggregate, and
the case must be one in which the Court would not otherwise (i.e.
but for section 6) have jurisdiction to impose a two year term ofimprisonment.
It is unnecessary for present purposes to consider condition (a). Theeffect of condition (6) to which I have just referred is that section 6would never be applicable in a case tried before the Supreme Court or
H. N. G. FERNANDO, J.—Kulatungam v. Hussein
before the District Court if the offence charged is declared by the PenalCode or other law to be punishable with imprisonment for two years orlonger. Nor would it apply where a Magistrate has assumed jurisdictionunder section 152 of the Criminal Procedure Code to try an offence sopunishable. It is important, I think, to emphasise the words “ in anycase in which he would not otherwise have jurisdiction so to do ”, becausethose words make it manifest that the section is only intended for caseswhere jurisdiction does not already exist to impose a two year term andshould not be utilised by any Court in order to sentence an offender tomore than two years.
It follows that section 6 can only be resorted to upon a conviction for acrime punishable with a term of imprisonment shorter than two years, andthat in such cases the section is not intended to authorise a termof imprisonment additional to the term prescribed in the law creating theoffence, but only to enhance the length of the prescribed term to onewhich may extend to two years. The limitation of the sentence ofimprisonment to one of two years, however, does not fetter the right toimpose a separate sentence of imprisonment in default of the payment ofa fine, subject of course to the general limitation contained in section312 (1) (c) of the Code ; namely one-fourth of the term fixed by the sectioncreating the offence of which the accused is convicted.
The appeal is dismissed.
T. KULATUNGAM, Appellant, and M. M. HUSSEIN (Inspector of Police), Respondent