( 142 )
Present : Ennis J. and Schneider A.J.
THE KING v. HARMANIS et al.
149 and 143—D. C. (Crim.) Kalutara, 9,985.
Conviction for removal of, timber without a permit under For^o Ordina -e,No. 16 of 1907—Subsequent charge under s. 367 of the '£■ ial■Code—Interpretation Ordinance, s. 8—Autrefois convict.
A person convicted under the Forest Ordinance for removingtimber without a permit may be again • tried and punished fortheft of the same timber.
rjl HE facts appear from the judgment.
A. St. V. Jayewardene, for appellants.
Garvin, S.-G., for the Crown.
Cur. adv. vult.
August 25, 1916. Ennis J.—
The question referred to a Court of two Judges was whether aperson whofiad been convicted oracquittedunder theForest
Ordinance for removing timber without a permit could be againtried and punished for theft of the same timber. Mr. ^ A. St. V.Jayewardene argued that section 8 of the Interpretation Ordinance,No- 21 of 1901, is a bar. That section runs: —
Where anyact or omission constitutesan offenceunder twoor more
laws, whethereither or any of such lawscame intoforce beforeor after
the commencement of this Ordinance, the offender shall. unless thecontrary intention appears, be liable to be prosecuted and punishedunder either or any of those laws, but shall not be liable to be punishedtwice for the same offence.
Mr.. Garvin argued that the word “ act ” must be read in a widersense than the mere physical act, and must be considered with theother elements which cause the act to be an offence. This-‘isundoubtedly so, because the act of removing timber does not byitself constitute an offence under any law. Bemoving it “ dis-honestly ” or “ without a permit ” (with certain exceptions) does,i.e., it is the act coupled with a dishonest intention or a mala fideomission which constitutes the offence. An act considered withits concomitant circumstances may constitute an offence underone law and a different kind of offence under another law, .as inthe present case. The suggestion of my brother Schneider thatthe word “ same " in the last clause is the keynote of the section
( )seems to me to afford a construction of the section without anypart being redundant, and to explain the occasion for the sectionconsidered as an addition to the provisions of the Penal and CriminalProcedure Codes. In the light of this suggestion, Mr. Garvin’scontention would hold good, i.e.t the act of theft of timber wouldbe a different act from the act of removing timber without a permit,although the element of “ removing timber ” is common to both.On this construction the • present case does not fall within thesection. The exact point* has not been considered, so far as I amaware, but the effect of the section was considered in Modder v.Perera,1 where it was held that the offence of theft of a postal parcelunder section 370 of the Penal Code is substantially the same asthe offence specified in section 62 of the Post Office Ordinance of1908, and section 8 was held to apply.- The point for considerationin applying section 8 seems to be whether or not the act whichconstitutes an offence under one law is substantially the same asthe act which constitutes the offence under another law. Theprinciple was applied in two Indian cases-, Queen v. Dalapald Rau 2and Erran Redi,3 apparently without the aid of any law similarto section 8 of the Ceylon Ordinance No. 21 of 1901. I have,however, only a note and not the report of the latter ease.
I would dismiss the appeal.
On December 13,1914, the accused-appellants were detected
when transporting by water certain logs of timber which had beenillicitly felled bv some unknown person from a Crown forest. Thevalue of the timber was Rs. 200.45. The accused were thencharged in case No. 33,243 of the Police Court of Kalutara: (1) Withremoval of this timber without a permit, in contravention of ruleNo. 2 dated April 21, 1909, made by the Governor in ExecutiveCouncil, under section 24 (1) (a) of the Ordinance No. 16 of 1907.and published in the Government Gazette No. 6,306 of April 23,1909; and (2) of the theft of this timber under section 367 of thePenal Code.
The PoliceMagistrateconvictedthem ofthe former charge
under the Forest Ordinance, as by virtue of section 5 (a) of thatOrdinance he had jurisdiction to try offenders. In regard to thesecond charge, the accused were committed to the District Court,as the value of the property was beyond the jurisdiction of thePolice Court.The District Judgeconvictedthe accused, and
sentenced eachof them tonine months’ rigorousimprisonment. On
appeal from this conviction, the accuseds’ counsel contended thatthe accused, having been tried and punished under the provisionsof the ForestOrdinance,could notbe triedor' punished under
tH.e Penal Code, by reason of the provision in section 8 of thei (1913) 16 N. L. R. 87.21 Mad. 83.» 8 Mad. 89b'.
The King vHarmanit
The King v.Harmanis
C 144 )
Ordinance No. 21 of 1901. This contention was referred £o aBench of two Judges, and is the question for determination now.
The material portion of the section is the following: —
Where any act or omission constitutes an offence under two or more
lawsthe offender shall, unless the contrary intention appears,
be liable to be prosecuted and punished under either or any of thoselaws, but shall not be liable to be punished twice for the same offence.
Mr. A. St. V. Jayewardene, who appeared for the accused-appellants, contended that the removal of the timber was the actwhich constituted the offence under the Forest Ordinance and alsounder the Penal Code, and that, therefore, the accused could not bepunished inder the latter law.
The Solicitor-General, who appeared for the Crown, and arguedhis case with much ability, submitted that the word “ act " doesnot signify a mere physical act, such as the removal of timber, butmeans much an “ act ” as constitutes an offence, that is, a physicalact plus something else, which, when combined, constitute theoffence. He said that the section did no more than state thewell-recognized principle nemo debet bis pro eadem culpa puniri.
I am inclined to agree with the learned Solicitor-General.
The section in question I find has been adopted verbatim fromsection 33 of the Interpretation Act, 1889 (of England, viz., 52 and53 Viet., c. 63). I have been unable to discover any decisions ofthe English Courts which are of any assistance in deciding thepoint under consideration; but it seems to me that there could behardly any doubt that the intention of the enactment in Englandof section 33 of the Interpretation Act was to give statutory sanctionto a well-recognized principle of English jurisprudence, that ' noman was to be punished twice for the same offence. The only localcase which was cited was that of Modder v: Perera.1 There aPost Office peon while employed as such in the General Post Officecommitted theft of a “ postal article. ” He was convicted undersection 370 of the Penal Code, that is, of theft, while being a servant,of property in possession of the master. It was held that thisconviction debarred a prosecution under section 62 of the OrdinanceNo. 11 of 1908, which penalizes theft or dishonest misappropriationof any postal article. Wood Kenton J. in his judgment says thatby virtue of section 8 ofvOrdinance No. 21 of .1901 the man cotildnot be punished twice for the same offence, the conviction for theftunder the Penal Code being for an offence “ substantially identical ”with that under the Ordinance No. 11 of 1908. The ratio decidendiof the case is, therefore, the identity of the offence, and the viewtaken seems to be that the test is whether the ofFence is the “ same ”in the one prosecution as in the other. But it is clear from the factsthat the “ act ” was also identical as regards the offence undereither law, because it was the theft of a postal article by a PostOffice employ&.
i (1913) 16 N. L. R. 87.
( 146 )
I am inclined to the opinion that the real test is the identity 1916*of the *' act or omission which constitutes the offence.” By schnjsidkb“ omission ” must be understood the failure to perform a duty A.J.imposed by law. . In this case the mere removal of the timber was King v.not an offence under the Penal Code or the Forest "Ordinance rules. BarmanisThat removal plus an intention to take the timber dishonestly wasthe ” act ” which constituted the offence under the Penal Code.
That removal plus the omission to obtain a permit was the act oromission which constituted the offence under the Forest Ordinancerules. It is not possible to say that these two acts, or to be moreprecise, the act in the one case and the omission in the other, areidentical. The only part identical to both is the removal, but thatremoval without more is not an offence.
In my opinion the meaning of the section is that where a givenset of facts constitute an offence which is punishable under morethan one law, the offender may be prosecuted and punished underany one of such laws, but may not thereafter be prosecuted orpunished again under any other of such laws.
I would dismiss the appeal.
713 and 714—P. C. Galle, 2,815.
August 29, 1916. De Sampayo J_— .
The two accused were convicted and sentenced upon two charges,namely, (1) felling and removing certain timber from a Crown forestwithout a permit, in breach of rule 1 of the rules framed under section21(c) of the Ordinance No.16of1907, and(2) stealing thesame
timber under section 367 of the Penal Code. I may say that fellingand removing timber withoutapermit aretwodistinct offences,and
should .not have been includedinonecharge asthough they constituted
• one offence. The point taken in regard to the charges, however, is thatthe removal^ of timber in breach of the above rule and the theft of itare one and the same act within the meaning of section 8 of theInterpretation Ordinance, No.21of1901,andthat, therefore,the
accused are – notliableto be punishedtwice for thesameoffence. A
similar point 'was considered by a Bench of two Judges in 142-143—D.C. (Crim.) Salutara,2,985, SupremeCourtMinutes,August25,1916,
and it was there decided by my brothers Ennis and Schneider, whoformed the Bench,thatthe removal of timber in breachof theforest rule
and the removal of it dishonestly in the definition of theft under thePenal Code weretwodistinct offences,andwere punishableseparately.
That decision, with – which 1 may say I agree, governs this case, and theobjection cannot therefore be sustained
THE KING v. HARMANIS et al