The Queen v. Premadasa
[In the Court of Criminal Appeal]
Present: Basnayake, C.J. (President), Pulle, J., and
H. N. G. Fernando, J.
THE QUEEN v. V. PREMAD ASAAppeals Nos. 147-149 of 1958, with Applications Nos. 184-186
S. C. 20—M. G. Colombo, 41225
Sentence—Previous convictions of accused—Procedure—Prevention of Crimes Ordi-nance, ss. 2, 6—Criminal Procedure Code, s. 253.
The power to impose the imprisonment prescribed in section 6 of the Preven-tion of Crimes Ordinance is in addition to any punishment other than imprison-ment to which the convicted person may be liable. It has no applicationto a case where the Court has power to impose a long term of imprisonmentin respect of the offence of which the accused has been found guilty.
It is not permissible, when imposing sentence, to take into account previousconvictions alleged against the accused but neither admitted by him nor proved.
In proceedings against accused persons with previous convictions the pro-cedure prose rib d in section 2 of the Prevention of Crimes Ordinance andin section 253 of the Criminal Procedure Code should be strictly followed.
BAS NAY Alt’R, C.J".—The Queen v. JPremadaea
PPEALS, with applications, against certain convictions in a trialbefore the Supreme Court.
W. de Silva, with D. G. W. Wickremasekara, for 3rd Accused Appel-lant.
1st Accused-Appellant in person.
4th Accused-Appellant in person.
Ananda Pereira, Senior Crown Counsel, for the Attorney-General.
Cur. adv. vult.
February 23, 1959. Basnayake, C.J.—
The question that arises for decision in this appeal is whether thesentence passed on the 4th accused, who was convicted along with twoothers of charges of robbery, should be reduced on the ground that thelearned Commissioner in imposing his sentence took into account twoprevious convictions for theft alleged against him but neither admittedby him nor proved
After the jury returned the verdict learned Crown Counsel stated“ 1st accused has seventeen previous convictions ”. Each of themappears to have been described by Crown Counsel by reference to the dateof offence, nature of offence and amount of punishment, and the accusedasked whether he admitted the convictions. He admitted nine of them.Thereafter Crown Counsel stated : ” This accused is liable to enhancedpunishment in terms of section 6 of the Prevention of Crimes Ordinance.”
To an inquiry by the Commissioner of Assize whether the accusedhad admitted his previous convictions before the Magistrate, CrownCounsel stated that no admission had been recorded.
Next Crown Counsel stated : “ The 3rd accused has 3 previous con-victions ”, and proceeded to describe them in the same manner as hedescribed the convictions of the 1st accused. The accused admittedall the convictions. Crown Counsel then stated as in the case of the1st accused that the 3rd accused was also liable to enhanced punishmentunder section 6 of the Prevention of Crimes Ordinance.
The accused were found guilty of offences punishable with fourteenand twenty years’ rigorous imprisonment respectively and the Com-missioner had power to impose the maximum sentence if he thoughtit fit to do so. That being the case it is not clear why learned CrownCounsel drew the learned Commissioner’s attention to section 6 of thePrevention of Crimes Ordinance. That section empowers a courtbefore which a person who has previously twice or oftener been convictedof any crime and has been sentenced on such convictions to undergorigorous imprisonment exceeding in the aggregate one year is againconvicted of a crime, to sentence him to rigorous imprisonment for
2*J. If. R 11 (11/61).
BASNAYAKE, CJ.—The Queen v. Premadasa
a period not exceeding two years in addition to any punishment otherthan imprisonment to which he may be liable, in any case in which thecourt would not otherwise have jurisdiction so to do. It has no appli-cation to a case such as this where the court has power to impose suchlong terms of imprisonment in respect of the very offences of Which theaccused have been found guilty. It should be noted that the power toimpose the imprisonment prescribed in the section is in addition to anypunishment other than imprisonment to which the convicted personmay be liable. This section has been discussed in several decisions ofthe Supreme Court. It is sufficient to refer to one of them, Pillai v.Sirisena1.
Lastly Crown Counsel stated : “ The 4th accused has two previousconvictions They were for offences committed on the same dayin November 1956. The accused did not admit either of the convictions.Crown Counsel volunteered the statement that no admission had beenrecorded by the Magistrate.
The Commissioner of Assize then imposed the following sentences onthe accused :—
1st accused, lO years’ rigorous imprisonment on count 1, and 15years’ rigorous imprisonment on count 2,
3rd accused, 8 years’ rigorous imprisonment on count 1, and 10years’ rigorous imprisonment on count 3,
4th accused, 8 years’ rigorous imprisonment on count 1, and 10years’ rigorous imprisonment on count 3.
The punishment imposed on the 3rd accused who admitted thre^ previousconvictions, on the last of which he had been sentenced in 1945 to 8 years’rigorous imprisonment, and on the 4th accused who did not admit anyprevious convictions and against whom none were proved, is the same.It is difficult to escape the conclusion that the previous convictionsalleged against the 4th accused though neither admitted nor provedwere taken into account by the learned Commissioner in determiningbis sentence. There is no evidence that he played a prominent partin the robbery. The. main evidence against him is the existence ofhis palm print (P5) on the near side rear mudguard and a finger print(P4) on the plated portion of the near side rear door of the car whichthe accused used for getting away after the crime.
The learned Commissioner appears to have b^n influenced by materialwhich was not in evidence in determining the sentence on the 4th accused.He should not have been treated in the same way as the 3rd accusedwho admitted previous convictions for crimes. We accordingly reducehis sentence on count 1 to a term of rigorous imprisonment for fouryears and on count 3 to a term of rigorous imprisonment for 5 years,the sentences to run concurrently.
Before we part with this judgment we must express our dissatisfactionwith the way the Magistrate who held the inquiry into these offenceshas acted. He does not seem to have given his mind to the documents *
*11946) 31 C. L. W. 32.
BASNAYAKE, C.J.—The Queen v. Premadasa
he was signing or paid any regard to the functions he had to performunder the Prevention of Crimes Ordinance. We can find no excuse forhis appending the following certificate under his hand to a blank formin which he purports to have acted under section 2 (3) of the Preventionof Crimes Ordinance, but whicn does not Show that he has in fact done so :—
“ I hereby certify that the above record was taken in my presenceand contains accurately the whole of the examination of the accusedand that it was not practicable for me to record it in the Sinhalese/Tamil language in which it was made.”
Magistrates who have statutory functions to perform should pay heedto the statutes under which they act and carefully*observe their require-ments and not act in a perfunctory manner, as the Magistrate has actedin the instant case.
We wish to take this opportunity of drawing the attention of allMagistrates to the necessity of complying strictly with the requirementsof section 2 of the Prevention of Crimes Ordinance. It should be bornein mind that sub-section (5) of that section provides that any statementor evidence recorded and any document tendered under it may be putin and read as evidence at the trial at such time after the conviction as itbecomes material to inquire into the past record and character of theaccused.
Magistrates should also note that where the accused when called uponto admit or deny separately each of the convictions set forth in thecertificate issued by the Registrar of the Finger Prints and IdentificationOffice either does not make a statement or makes a statement denyingall or any of the convictions the Magistrate after recording the statement(if any) in the prescribed manner should proceed to record in respect cfsuch of the convictions as the accused does not admit the evidenceprescribed in section 4.
The procedure to be followed after an accused person with previousconvictions has been convicted at a trial in the Supreme Court is to befound in section 253 of the Criminal Procedure Code. The requirementsof paragraph (6) of sub-section of that section have not been observed inthe instant case. There has been no inquiry concerning the previousconvictions which the accused denied. Although the proceedings undersection 2 of the Prevention of Crimes Ordinance appear to have beenforwarded to the Attorney-General long before the date of this trial it isdeplorable that no endeavour was made to produce the evidence ndbes-sary for proving at the trial the previous convictions which the accuseddenied.
The appeals of the 1st and 3rd accused are dismissed and their applica-tions are refused.
Subject to the variation in the sentence, the application and appealof the 4th accused are also dismissed.
Appeals of 1st and 3rd accused dismissed.
Sentence on 4th accused reduced.
THE QUEEN v. V. PREMADASA