WIJEYEWARDENE J.—Alwis and Fernando.
1943Present: Wijeyewardene J.
ALWIS, Appellant, and. FERNANDO, Respondent.
816—M. C. Colombo, 628.,
Supreme Court—Powers m revision—Appeal from conviction—Power todischarge accused' under Criminal Procedure Code, Sec. 325—CourtsOrdinance, s. 37.
Where, on an appeal from a conviction by a Magistrate, the SupremeCourt is of opinion that the accused should be dealt with under section325 of the Criminal Procedure Code the Court has power under section 37of the Courts Ordinance to direct the Magistrate to discharge the accusedconditionally under that section of the Criminal Procedure Code.
HIS was an application for revision of a conviction by the Magistrateof Colombo.
S. Saravanamuttu, for applicant.
E. L. W. Zoysa, C.C., for complainant, respondent..
January 26,1943. Wijeyewardene J.—
The accused was charged with having committed criminal breach oftrust in respect of a sum of Rs. 140 entrusted- to him by‘h-is employer.The accused was convicted on nis pleading .guilty to the charge andsentenced to 3 months’ rigorous imprisonment..
According to an affidavit of the accused filed in this court, the accusedis a lad of seventeen years with no previous convictions' and an uncle ofthe accused has replaced the amount lost by the employer. The employerhimself has filed an affidavit stating that he found the accused “ strictlyhonest” during the four years the accused'was' employed under' him andexpressing, his willingness to.. . re-employ the accused. The counselappearing for the Grown does- not dispute the correctness of . thesestatements.
No doubt, the offences committed by the. accused cannot be consideredas trivial; but it:, appears as if the accused has' succumbed to Suddentemptation and committed a thoughtless, rather than a criminal act. Oneof the important objects of punishment is the reformation, of the: offenderand it is very essential that .magistrates should not. lose sight of. thisobject when dealing with youthful offenders( with a previous good record.It is not very desirable that a young lad of 17 years with no previousconviction should be sent to prison and turned .into a social outcast. Ithink that this is a case where the .magistrate should have exercised the
. 1 43 N. L. R. 436.2 43 N. L. R. 421.
WIJEYEWARDENE J.—Alwis and Fernando.
discretion vested in him by section 325 of the Criminal- Procedure Codeand given the young lad a chance of reforming himself instead of sendinghim to prison early in his life.
The question, however, arises whether this court could make such anorder under section 325 when exercising its revision powers in a casewhere the Magistrate has convicted the accused and sentenced him to aterm of punishment. In dealing with a matter in revision this courtcould, by virtue of section 357 of the Criminal Procedure Code, exercisethe appellate powers conferred by section 347 of the code. Now section347 enacts that this court may—
in an appeal from a conviction-^
reverse the verdict and sentence and acquit or discharge
the accused or order him to be retried by a court ofcompetent, jurisdiction or committed for trial or
alter the verdict maintaining the sentence or with or
without altering the verdict increase or reduce theamount of the sentence of the nature thereof.
in an appeal from any other order, alter or reverse such order.Clearly the present case does not fall under section 347 (c) as thatsub-section refers to an appeal from an order other than that of acquittalor conviction. Could it be dealt with under section 347 (b) ? Undersection 347 (b) (i) if I “ reverse the verdict ” I cannot order the accusedto enter into a bond. Under section 347 (b) (ii) I could only alterthe verdict and increase or reduce the amount of the sentence or alterthe nature of the sentence. I find it difficult to hold that I would beacting under section 347 (b) if I set aside the conviction and order theaccused to enter into a bond.
I find that a similar difficulty arose in India regarding the exerciseby an Appellate Court of the powers conferred by section 562 of the.Indian Code of 1898 corresponding to section 325 of our code.In Narayanswami Naidu v. Emperor' White C.J. and SubramaniaAiyar J. found it possible to meet the difficulties created by section 423 ofthe Indian Code (corresponding to section 347 of our code) by stating—
“ We do not think it was the intention of the Legislature by the use
of the words ‘ Court before whom he is convicted ’ in section 562,
Criminal Procedure Code to limit the power of making orders under
that section to the court of first instance.”
I may add that the Indian Code was subsequently amended in 1923by giving the power in express terms to the High Court to make an orderof this nature when dealing with a matter by way of revision.
Without adopting the same line of reasoning as in NarayanswamiNaidu v. Emperor in construing section 325 of our code, it is possibleI think, for this court to invoke the powers under section 37 of the CourtsOrdinance and make an order under section 325 of our code and I doriot think that in doing so this court will be acting contrary to the provi-sions of section 357 of the Criminal Procedure Code. ’
(1906) 29 Madras 568.
Silva and Wickremesinghe.
I would therefore set aside the conviction pro forma and remit theproceedings to the Magistrate with a direction to him to discharge th'eaccused conditionally under section 325 of the Criminal Procedure Codeon the accused entering into .a bond in such a sum and with such suretiesas the Magistrate may consider adequate. The bond will provide for theaccused appearing for conviction and sentence when called on at anytime within 2 years.