KEUNEMAN J.—The King v. Martin
[Court of Criminal Appeal.]
1944 Present: Keuneman, de Kretser and Wijeyewardene JJ.
THE KING v. MARTIN.
99—M. C. Avissawella, 26,184.
Sentence—Leave to appeal—Conviction for rape—Sentence of whipping—Sentence substituted for original sentence—Court of Criminal AppealOrdinance, No. 23 of 1938, s. 4(c).
Where the Accused who was convicted at the Assizes of robbery andrape was sentenced to five years’ rigorous imprisonment in addition to10 lashes, and where as the sentence of whipping could not he carried outan additional sentence of imprisonment was imposed by the trial Judgeacting under section 318(1) of the Criminal Procedure Code,—
Held, that the accused could ■ not be granted leave to appeal againstthe sentence passed in substitution – for the original sentence.
rp J=L1S was an application for leave to appeal against a sentence.
No appearance for applicant.
E. H. T. Gunasekera, G.C., for the Crown.
Cur. adv. vult.
June 26, 1944. Keuneman J.—
This is an application for leave to appeal against sentence made to theCourt of Criminal Appeal under unusual circumstances. On September 7,1943, the prisoner was found guilty at the Assizes of robbery, rape, &c.and was sentenced to 5 years’ rigorous imprisonment and 10 lashes.Leave to appeal against the conviction was applied for to this Courtbut was refused on September 10, 1943. Thereafter it was found thatthe sentence of whipping could not be carried into execution, and thematter was brought up before the Judge who presided at the .trial. ThatJudge ordered—on May 5, 1944—that in lieu of the sentence of whip-ping the prisoner be sentenced to an additional .term of two years’ rigoTousimprisonment. This order was made under section 318 (1) of the CriminalProcedure Code, and leave to appeal against this order is asked for.
Under section 318 (1) where a sentence of whipping is wholly or partiallyprevented from being carried into execution, the offender shall – be keptin custody till the Court that passed the sentence can revise it, and thatCourt may at its discretion either order the discharge of the offender orelse enter a sentence of imprisonment in substitution, which may beadditional to any punishment already imposed. In this case it is clear
Siriwwrdene and Perera
that a proper application was made to the Judge who presided at thetrial, and that the Judge exercised his discretion within the terms of thesection.
The right to appeal to this Court is governed by the Court of CriminalAppeal Ordinance, No. 23 of 1938. Under section 4 (c) any convictedperson may “ appeal with the leave of the Court of Criminal Appeal, againstthe sentence passed on his conviction, unless the sentence is one fixedby law ”. Can this sentence passed in substitution of the original sentencebe regarded as a “ sentence passed on his conviction ”? We thinknot. This view is further supported by the terms of section 5 (3)—“ On an appeal against sentence the Court of Criminal Appeal shall,if they think that a different sentence should have been passed, quashthe sentence passed at the trial, and pass such other sentence warrantedin law by the verdict (whether more or less severe) in substitution there-for as they think ought ..to have been passed, and in any other case shalldismiss the appeal ’ ’.
The powers of the Court of Criminal Appeal are under this sectionrestricted to quashing “ the sentence passed at the trial ” and takingfurther action upon that. Clearly in the present case it cannot be saidthat the sentence, against which an appeal is desired, was passed at thetrial. In this connection see also section 6.
In our opinion thte present application for leave to appeal againstsentence cannot be entertained. The application is refused.
THE KING v. MARTIN