078-NLR-NLR-V-48-ALDIN-Appellant-and-SANASGALA-S.-I.-Police-Respondent.pdf
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DIAS J.—Aldin v. Sanasgala.
1947Present: Dias J.
ALDIN, Appellant, and SANASGALA (S. I. Police), Respondent,
728—M. C. Balapitiya, 56,500.
Sentence—Conviction for causing hurt under Penal Code, s. 315—Hurt.not caused by “ dangerous knife ”—Competency of Magistrate to orderwhipping—Knives Ordinance (Cap. 20), s. 10.
Under section 10 of the Knives Ordinance, whenever a person isconvicted before a Magistrate of an offence under section 315 of thePenal Code, the offender is liable to be whipped, whether the hurt wascaused by a “ dangerous knife ” or not.
A
PPEAL against a conviction from the Magistrate’s Court,Balapitiya.
. K. Sivasubramaniam, for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
Cur. adv. vult.
January 13, 1947.. Dias J.—
I see no reason to interfere with the findings of fact of the Magistrate.The appellant who was a baker’s boy failed to deliver bread to the injuredman Linton Perera on August 24, 1946. On the following day too LintonPerera got no bread. Therefore when he saw the appellant returning tothe bakery after his rounds, Linton Perera accosted the appellant, held thehandle bar of his bicycle and asked him why no bread had been delivered.The appellant dismounted, pulled out a knife, stabbed the complainantand took to his heels. The medical evidence shows that Linton Pererasustained a stab wound in his chest 2i inches deep. The attack was awanton one and was inflicted without any justification or provocation.
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DIAS J.—Aldin v. Sanasgala.
The appellant who had one previous conviction for causing hurt wassentenced to undergo six months’ rigorous imprisonment and to receive15 strokes with a rattan under the Prohibited Knives Ordinance(Chapter 20). The age of the appellant is twenty-one.
Counsel for the appellant argued that the sentence was excessive, andin particular that the sentence of whipping was illegal. He urgedthat the Dangerous Knives Ordinance was enacted to prohibitthe carrying of “ dangerous knives ”, which by section 15 were definedto mean “ any knife …. the blade of which is more than 3£ inchesin length, and is not so rounded or blunted at the point as to be incapable.. .. of being used as a stabbing instrument ”. It is submitted that
there is no evidence that the knife used by the appellant was such a knife.As the medical evidence showed that the depth of the wound was only 2$inches, there was a doubt whether the knife used by the appellant was adangerous knife. A penal enactment like Chapter 20 should be strictlyconstrued, and there being a doubt, the sentence of whipping cannotstand. That would be a strong argument, but unfortunately for theappellant, this Court on two previous occasions has considered anddecided that point against him.
Chapter 20 reproduces the provisions of Ordinance No. 28 of 1905.The editor of the revised edition of the Legislative Enactments, in preparing;Chapter 20, altered the sequence of the sections of the Ordinance. Theorignal section 12 now appears as section 10 in Chapter 20.
The preamble to Ordinance No. 28 of 1906 reads as follows :—
“ Whereas it is expedient to prohibit the carrying of certain descriptionsof dangerous knives : Be it therefore enacted, &c.” It is, therefore,clear that the Ordinance is one which is designed to prohibit the carryingof certain kinds of knives. The draftsman of the original section 12,however, provided that “ Whenever a person is convicted before aMagistrate’s Court of an offence under section 315 of the Penal Code,such Magistrate’s Court may, in addition to or in lieu of any punishmentto which the offender may be sentenced for such offence, order suchoffender to be whipped in manner prescribed by the Criminal ProcedureCode, but the number of lashes or strokes to be inflicted shall in nocase exceed the limit prescribed by the Corporal Punishment Ordinance(Chapter 17).” The construction of this section was considered byde Sampayo J. in 529-531 M. C., Badulla, 8,612 In that case certainpersons were convicted under section 315 of the Penal Code for causinghurt and were sentenced to terms of imprisonment arid also to receive24 lashes under this Ordinance. The hurt was not caused with kniveshut by means of clubs.
De Sampayo J. held that the preamble to Ordinance No. 28 of 1906could not govern or qualify the general language of section- 12. “Thepreamble of an Ordinance is a good means to find out its meaning, andmay legitimately be consulted for the purpose of solving any ambiguity ;but it cannot control or restrict the actual provisions when they areclear and not open to doubt. The enacting part of an Ordinance is
* (1912) 1 Times of Ceylon L. R. 213.
Caldera v. S. I. Police, Welikada.
. 233
not necessarily co-extensive with the preamble, and although a parti-cular mischief is recited, the legislative provisions may, and do oftenextend beyond it. In section 12 of this Ordinance there is no ambiguity,and I have no doubt that the provisions for whipping extends to all casesunder section 315 of the Penal Code whether the weapon used is a knifeor any other instrument1 The same question arose again in Sellathuraiv. Kandiah * where the accused caused hurt under section 315 by pouringboiling water on the injured person. A. St. V. Jayewardene J. refusedto delete a sentence of whipping imposed under the Dangerous KnivesOrdinance following the judgment of de Sampayo J.
These decisions are in point and I feel bound to follow them. Undersection 10 of Chapter 20, whenever a person is convicted before a Magistrateof an offence under section 315 of the Penal Code, the offender is liableto be whipped irrespective of whether the hurt was caused by a “ danger-ous knife” or any other kind of agency. The Magistrate in this case,therefore, had jurisdiction to inflict a sentence pi whipping. If thelaw should be amended that is a question for the Legislature and notfor the Courts.
I am, however, of opinion that the sentence appears to be excessivein the light of all the circumstances of the case. I set aside the sentenceand direct that the appellant shall undergo rigorous imprisonment forthree months and to receive 6 strokes with a light cane or rattan.
The sentence of whipping, of course, will have to be confirmed byHis Excellency the Governor in terms of section 316 of the CriminalProcedure Code. Subject to these variations the appeal is dismissed.
Appeal dismissed.