096-NLR-NLR-V-51-ATTONEY-GENERAL-Appellant-and-PODISINGHO-Respondent.pdf
DIAS S.P.J.—Attorney-General v. Poiisingho
385
1950Present: Dias S.P.J. and Swan J.
ATTORNEY-GENERAL, Applicant, and PODISINGHO, Respondent,S. C. 187—Application for revision in M. C. Kandy, 7,020
Revision—Power of Supreme Court to act in revision in criminal cases whether or nut
an appeal lies—Effect of delay—Sentence—Imprisonment tiU rising of Court—.
Irregular—Courts Ordinance (Cap. 6), s. 37—Criminal Procedure Code
(Cap. 16), as. 15A, MB, 338 (2), 356. 357.
The sentence imposed by a Magistrate was less tluin t he minimum punishmentproscribed by statute and was, therefore, irregular and not sanctioned by law.The Attorney-Geiioral did not appeal, although ho iiad the right to (lo so undersection 338 (2) of the Criminal Procedure Code. Aftor tho time limit for appealelapsed, but in circumstances where it could not be said that there was unusualdelay, he made application to tho Supreme Court for the revision of the sentence.
Held, that the powers of revision of tho Supreme Court are wide enough toembrace a caso where an appeal lay but was not taken. In such a case, howover,an application in revision should not be entertained save in exceptional cir-cumstances, such as, («) where there has been a miscarriage of justice, (b) wherea strong case for the interference of the Supreme Court has been made out bythe petitioner, or (c) where tho applicant was unaware of tho order made by theCourt of trial.
The Attorney-General v. Kunchihambu (1945) 46 AT. L. R. 401 distinguished.
Held further, that an order of “ imprisonment till tho rising' of tho Court ’ ’is irregular. The effect of sections IRA and 15B of tho Criminal Procedure Codeis to abolish “ imprisonment till the rising of the Court ” or any imprisonmentfor a term which is loss than sovon days. An ofTouder may, however, bo“ detained " until the rising of tho Court, such rising being not later than 8 p.m.
^APPLICATION to revise a sontencc passed by the Magistrate’s Court,Kandy. This ease was referred by Dias S.V.J. to a Bench of two
Judges.
A. Wijemanne, Crown Counsel, with S. <V. Wijcsinha, Croton Counsel,for the Attorney-General.
T.W. Rajaratnam, for the accused respondent.
Cur. adv. vult.
July 5, 1950. Dias S.P.J.—
This is an application by the Attorney-General for the revision ofthe sentence passed by the Magistrate on the accused respondent,
P.Podisingho.
17LI.
1J. N*. A 98321-1,042 (6/50)
386DIAS S.P.J.—Attorney-General v. Podieingho
The charge against him was that on December 17, 1949, at the KandjMunicipal Elections he applied for a ballot paper in the name of anotherperson, to wit, G. W. James Perera, and that he thereby committed the•offence of “ personation ” punishable under s. 78 (1) of the Local Autho-rities Elections Ordinance, No. 53 of 1946. The respondent havingpleaded guilty to this charge, the Magistrate convicted and sentencedhim to pay a fine of Rs. 50 and to be imprisoned until the rising of theCourt.
The seriousness of offences of personation was pointed out by Howard
C.J. in Attorney-General v. Sinnathamby 1 when he said “ I agree
that personation is a very serious offence, and that the sentences passedby the Magistrate are not only inadequate,'but farcicalIn the present
case, the Attorney-General submits that not only is the sentence totallyinadequate and farcical, but also that it is illegal.
Section 78 (L) of the Local Authorities Elections Ordinance, No. 53of 1946, provides that on conviction after summary trial the personator‘ ‘ shall be liable to rigorous imprisonment for a term not exceeding oneyear, or to a fino not less th(in two hundred and fifty rupees and not morethan one thousand rupees, or to both such imprisonment and suchfine ”. It is, therefore, clear that the Legislature did not treat thisoffence in any spirit of levity. For reasons of public policy the summarypunitivo jurisdiction of the Magistrate was not only enhanced, but aminimum sentence of fine was also imposed. It ia conceded by counselfor the respondent that one part, at least, of the sentence imposed bythe Magistrate is not in accordance with the law.
XA preliminary objection, however, was raised by counsel for therespondent. He contends that the Supreme Court cannot and shouldnot entertain this application by the Attorney-General. As this questionis one of practical importance, and as the decision in the case of Attorney-General v. Kunchikambu 2 appeared to be inconsistent with other deci-sions of the Supreme Court, and as there are similar cases in which theAttorney-General has moved in revision to enhance the sentences passedby this Magistrate on personator9 who pleaded guilty, I considered thatthis case merited reference to a Bench of two Judges.
The matter has now been fully argued. Two questions emerge forconsideration—(a) Has the Supreme Court in this case power to revisethe sentence passed by the Magistrate ? and (6) if so, is this a case inwhich the Supreme Court ought to interfere ?
The powers of the Supreme Court to revise any order made by a Judgeof inferior jurisdiction are to be found in s. 37 of the Courts Ordinance,andjj^ss. 356 and 357 of the Criminal Procedure Code.
Section, 356 provides that the Supreme Court may call for and examinethe record in any case, whether already tried, or pending trial in any Courtfor the purpose of satisfying itself as to the legality or propriety of anysentence or order passed therein, or as to the regularity of the proceedingsof such Court. Section 357 provides that in cases where the record has
* (1945) 46 X. L. R. 401.
1 (1948) 49 N. L. R. 385
DIAS S.P.J.—Attorney-General v. Poi'mingho
387
been called for under s. 356 “or which otherwise comes to its knowledge”,the Supreme Court may in Us discretion exercise any of the powersconferred by as. 346, 347 and 348, that is to say, order the arrest of theaccused, commit him to prison pending the disposal of the ease in revision,or admit him to bail—s. 346, direct that further inquiry should be made,order a new trial, direct him to be committed for trial, or pass sentenceon him according to law, alter the verdict maintaining the sentence, orwithout altoriiig the verdict, increase or reduce the amount of the sen-tence, or the nature thereof—s. 347, take fresh evidence in the SupremeCourt or direct it to be taken by any Judge of a District Court orMagistrate's Court—s. 348.
It will bo seen, therefore, that when acting in revision in a criminalcase, the Supreme Court can act ex mere motu, or be moved by someperson who is dissatisfied with the conduct of the proceedings, or theorder made in a Court of inferior jurisdiction. Section 358 makes it clearthat no party has any right to be heard either personally, or by pleader,before the Supreme Court when exercising its powers of revision, providedthe Court may, if it thinks fit, when exercising such powers, hear anyparty either personally or by pleader. The only limitations imposedon the powers of the Supreme Court in revision arc—(a) that no ordershall be made to the prejudice of an accused person in revision unlesshe has been afforded the opportunity of being heard either personallyor by an advocate in his own defence—s. 357 (2), and (b) the SupremeCourt acting in revision may not convert a finding of acquittal into one ofconviction—s. 357 (3).
Except in those cases where the Supreme Court of its own knowledgecalls for the record under s. 356, some person must bring the allegedirregularity committed in the lower Court to the notice of the SupremeCourt. This is usually done by the party complaining against the order byfiling a motion and affidavit. This motion is supported by counsel,and the proceedings at that stage are ex parte. If the Judge considersthat a prima facie case has been made out calling for the exercise of revi-sional powers, he will direct that the record be called for, and at the sametime direct that notice of the application should be served on the otherparty and to any other person affected. It has been held that a case maycome “ to the knowledge ” of the Supreme Court while an appeal is beingargued as in Soy-sa v. PuncMrala 3, Clara v. Pedrich 4.
In the course of time, a body of case law has been evolved in regardto the principles on which the Supreme Court should act when disposingof an application in revision—particularly, in cases where the SupremeCourt has been moved by an aggrieved party.
Most of the decided cases are judgments of single Judges. Theleading case is R v. Noordeen 3 where Wood Renton J. laid it down thats.357 (l) “invests the Supreme Court with full power in all criminal cases.I do not think that that power is at all limited to those cases in whicheither an appeal lies or, for some reason or other, an appeal has not beentaken. I hold without hesitation that as a matter of law it extends to
5 (1886) 1 S. C. R. 199.* (1900) 1 Browne at p. 216.
a (1910) 13 N. L. R. at p. 117.
388
DIAS S.P.J.—Attorney-General v. t'odisinqho
cases in which the Attorney-General has refused to sanction an appealfrom an acquittal, provided that proper materials have been laid beforethe Court to call for its exercise This case has been consistently followedin the later cases. In Ossen v. Excise Inspector Ponniah 1 Dalton J.said : “ It was urged that this Court should not deal with a matter inrevision when leave to appeal had been refused by the Attorney-General.The nature of the onus that rests upon the applicant who comes beforethis Court for the purpose of inviting it in effect to override the deliberaterefusal of the Attorney-General to sanction an appeal, is referred to byWood Renton J. in H, v. Noordeen (supra). If, however, he makes out astrong case amounting to a positive miscarriage of justice in regard either tothe law or to the Judge’s appreciation of the facts, this Court will deal with,the matter”. In Punchi Mudiyanse v. Jayasuriya- Howard C.J. laid itdown that the powers of revision of the Supreme Court under s. 357 ofthe Criminal Procedure Code are not limited to cases wrhere there is noappeal, or where no appeal has for some reason not been taken. InMuttukrishna v. Hulugalle 3 a Bench of two Judges considered the scopeof s. 37 of the Courts Ordinance in regard to the revisional powers of theSupreme Court. The question was whether an order made by a DistrictJudge in an application made under s. 133 of the Companies Ordinancecould be revised by the Supreme Court. The Court, while approving ofthe principle laid down by Ji.v. N oordeen(supra)} namely, that the SupremeCourt has power to act in revision in all criminal cases whether or not anappeal lies, it was held that in the matter then under consideration,revision would not lie. It is to be noted, however, that R. v. Noordeen(supra) has been approved by a Bench of two Judges. In Wicferemasinghcv. Fay4 Moseley J; in following R. v. Noordeen (supra) said that the onuson the applicant was a heavy one, when he moved to revise an order ofacquittal where the Attorney-General had refused to sanction an appeal.It was incumbent on him to prove a positive miscarriage- of justice. Finallyin Perera v. Muthalib 5 Soertsz J. held that the revisionary powers ofthe Supreme Court are not limited to those cases in w'hich no appeal liesor in which no appeal has for some reason been taken. The Court wouldexercise those powers where there has been a miscarriage of justice owing tothe violation, of a fundamental rule of judicial procedure.
The question arises whether this decision of Soertsz J. is in conflict orinconsistent with his later decision in Attorney-General v. Kunchihambu(supra). It is therefore necessary to examine in some detail the facts ofthe latter case.
It appears that a provision of the Control of Prices Regulations, 1942,made the imposition of a term of imprisonment imperative when theconvict had a previous conviction. It is clear from the judgment of Soertsz
J.that, after the Magistrate had convicted the accused and imposed thesentence, the prosecuting Price Control Inspector brought it to the noticeof the Magistrate that the accused had a previous conviction. The Magis-trate, howrever, imposed no sentence of imprisonment. The Attorney-General moved in revision to enhance the sentence, and Soertsz J. refused
1 (1932) 34 N. L. R. at p. 52.3 (1942) 43 N. L. R. 421.
* (1940) 41 N. L. R. 431.* (1943) 44 X. L. R. 369.
8 (1944) 45 N. L. R. 412.
389
DIAS S.P.J.— ittorney-Qantra V. Podisinjho
to interfere. What is the ratio decidendi of that case ? Soertsz J. held (a)that the order of the Magistrate was appealable by the Attorney-Generalunder s. 338 (2) of the Criminal Procedure Code, (6) that the error of theMagistrate was an error of law and not o) fact,(c) that a sentence is a partof the judgment, (d) that the Supreme Court has a discretion as to whetheror not a particular order should be revised. Soertsz J. declined to exer-cise that discretion in favour of the Crown because, after the Magistratehad imposed the sentence of fine, he was belatedly informed of the pre-vious conviction, and (e) Soertsz J. also indicated that there appeared tohave been delay in making the application in revision. Soertsz J. said“ For these reasons I refuse to exercise my discretion, and I reject theapplication for an alteration of the sentence With great respect, Iassent to the reasons given by Soertsz J. That case, however, has alimited application, and is clearly distinguishable from the facts of thepresent case. In the present case, the Legislature has imposed a minimumpunishment, which docs not depend on whether the convict has or has nota previous conviction. I am unable to hold that there has been any unusualdelay In bringing tins case to the notice of this Court. As was pointedout by Wendt J. in CVea v. Girigoris Appu 1 “ A distinction should bedrawn between the case of an acquittal and that of a conviction with aninadequate sentence, and also between the sentence of a District Courtin which the Attorney-General directly prosecutes by one of his officers,and that of a Magistrate’s Court, of which the Attorney-General has not,as a rule, .any direct cognizance ”. It is a matter of common knowledgethat before the Attorney-General moves to revise the order made by aMagistrate, the prosecuting public officer has to obtain a certified copyof the proceedings. He then makes a report to his superior officerswho, after considering the matter, communicates with the Attorney-General. The case has then to be considered by a Crown Counsel whomay be on circuit at the other end of the 1aland. The case may thereafterhave to be considered by the Law Officers, after which the application inrevision is filed. All this must take some time. In the case before us theconviction took place on February 28, 1950, and the application inrevision was filed on April 22, 1950. It is impossible to hold that therehas been any avoidable delay in this case in filing this application so as tocause the slightest prejudice to the respondent.
At first sight it would appear that the case of Attorney-General v.Samarakoan'1 is decisive of this matter. In that case it was laid down thatwhere there lias been a conviction and a lawful sentence, tho Attorney-General has no right of appeal for enhancement of punishment;and that he should move in revision. That case laid down a propositionof sound law at the date it was decided. At that date the Attorney-General could only appeal against an acquittal. By Ordinance No. 19 of1930 s. 2, s. 338 (2) of the Criminal Procedure Code was amended 3and the Attorney-General was given the right to appeal “against any
' {1998) 11 A L. R. at p. 332.
* {1910) 14 A*. L. R. <5.
5 This amendment was necessitated by the decision in Arona v.1926)
29 N L. R. 43 and North v. Appuhamy (1926) 27 N I,. R. 420.
390DIAS S.l’.J.—Attoruf.u-General v. l‘oditun<fl<o
judgment or final order pronounced by a Magistrate’s Court or DistrictCourt in any criminal case or matter ”, and lie was given twenty-eightdays within which to prefer an appeal. The ratio decidendi ofAUome.y-General v. Samarakoon (supra) i, therefore, docs not apply tothe present case. The Attorney-General in the present ease had the rightto appeal against this admittedly irregular sentence. Not having doneso, should this Court refuse to deal with the mattor in revision? Theanswer to this question will bo found in the cases which I have citedearlier. The powers of revision of the Supremo Court are wideenough to embrace a case where an appeal lay but which for some reasonwas not taken. I agree with the observations of Akbar J. inInspector of Police, Avissaicelta t*. Fernando 2 that in such cases anapplication ill revision should not be entertained save in exceptionalcircumstances. In my view such exceptional circumstances would be(a) where there has been a miscarriage of justice, (b) w'herc a strong casefor the interference of this Court has been made out by the petitioner, or(c) where the applicant was unaware of the order made by the Court oftrial. These grounds are, of course, not intended to be exhaustive.
It is quite dear that the sentence of fine imposes! by the. Magistrate isnot sanctioned by law. Learned Crown Counsel argues that the orderthat the respondent should be “ imprisoned till the rising of the Court. ”is equally open to objection. It is, therefore, necessary to consider thissubmission.
Section 2 of Ordinance No. 47 of 1938 added two now sections to theCriminal Procedure Code, namely, sections 15a and 15b. Section 15aprovides that —
“Notwithstanding anything in this G*de, the Ceylon Penal Code,or any other written law to the contrary, no Court 9hall sentence anyperson to imprisonment., whether in default of payment of a fine ornot, for a term which is less than seven days
Section 15» (which was amended by Ordinance No. 59 of 1939,s. 2) reads. “ Any Court may, in any circumstances in which it isempowered by any written law or other law to sentence an offender toimprisonment, whet her in default of payment of a fine or not, in lieuof imposing a sentence of imprisonment, order that the offender bedetained in the precincts of the Court until such hour on the day onwhich the order is made, not being later than 8 p.m. as the Court mayspecify in the order5’.
These sect ions were considered in the nnroported case of 325 M. C.Kurumgala J0,2Si (S. C. M., May 6', 19-1$) when Canekoratnc J. altered asentence of ‘‘ imprisonment for a day ” to one of “detention in the pre-cincts of the Court till 4 p.m. on the day on which the appellant appearsin Court after the return of the record to the Magistrate’s Court Iagree with Crown Counsel that the effect of ss. I 5a and Inn of the CriminalProcedure Code is to abolish “ imprisonment till the rising of the Court ”or any imprisonment which is “ less than seven days Therefore, thereis force in the contention that the order of the Magistrate in imprisoning14 N. L. R. 5.* (I'JM) 30 N. L. It. 4f2.
DIAS S.P.J.—Attorney-General v. Podieingho
33 i
the respondent till the rising of the Court is technically irregular. Hadlie ordered the respondent to be “ detained ” until the rising of the Court,such rising being not later than 8 p.m., the order would have been in accor-dance with the provisions of s. 15b. This Court, however, is faced withan order of the Magistrate which is partly quite illegal and partlyirregular.
I am of opinion that the Attorney-General’s application for enhance-ment of sentence is entitled to be heard and decided on its merits. Thequestion, theu, is whether this is a case in which this Court ought toexercise its powers of revision ?
I am clearly of opinion that it should. The Magistrate should havebeen aware, not only of the imperative provisions of s. 78 (1) of the LocalAuthorities Elections Ordinance, No. 53 of I94G, and of ss. 15.i.and 15bof the Criminal Procedure Code, but also of the fact that both the l egis-lature and this Court have regarded the offence of personation at electionsas being an extremely serious one. In spite of these facts, the Magistratehas thought fit either through ignorance, or because he did not agree withthe legislature or this Court, to treat the offence of personation as avenial offence. In my opinion there has been a miscarriage of justicecalling for the interference of this Court. Following the words of Soertsz
J.in Perera v. Muthalib (supra)1 I hold that this is a case where there hasbeen a miscarriage of justice owing to the violation of a fundamentalrule of judicial procedure, viz., that a Magistrate must obey the law.
I desire to point out that in exorcising its powers of revision this Courtis not trammelled by technical rules of pleading and procedure. Indoing so this Court, has power to act whether it is set in motion by a partyor not, and even cx mero motu. A Judge of this Court has power to call,for a record and in proper cases to revise the order of a Court of inferiorjurisdiction. In doing so, of course, this Court will act on the principleslaid down by learned Judges in the past. Whether the application inrevision has been irregularly brought before this Court or not, once anirregularity has “ come to the knowledge ” of this Court, it can in a propercase act on such knowledge. I cannot agree with the submission oflearned counsel for the respondent that “ The law was made for man,and not man for the law”. If that means anything, learned counselwould have this Court to stand by powerless, while illegal orders arc madeby Magistrates and District Judges. That is a proposition to which Iam unable to assent.
I quash the sentence imposed by the Magistrate and in lieu thereof Idirect that the accused respondent should pay a fine of Rs. 250 andto be detained till the Court rose on February 28, 15)50. In default ofpayment of the fine, 1 sentence the respondent to undergo rigorous im-prisonment for sx term of throe months. The Magistrate will, I have nodoubt, consider oil its merits any application for time in which to paythe fine.
Swan J.—I agree.
1 (1944) 46 A*. L. P. 412.
Application allowed.