046-NLR-NLR-V-53-ARNOLIS-APPU-et-al.-Appellants-and-ESWARAPATHAM-Police-Sergeant-Respondent.pdf
Arnolis Appu c. Estcarapalham
039.
1951Present: Pulle J.ARNOTAS APPU et al., Appellants and ESWAR A PATH A M(Police Sergeant), Respondent
S. C. 1915-1216—M. C. Nuivara Elhja, 6,559
Sentence—Detention till rising of Court.—Cannot be- regarded as imprisonment—Criminal Procedure Code, s. 1-5a—Payment of Fines (Courts of SummaryJurisdiction) Ordinance, ss. 2, 3, 4.
The accused were, after a summary trial, convicted of house-breaking andsentenced-to detention until the rising of the Court- and to pay a fine of Es. 1,000,in default six months’ rigorous imprisonment—
Held, that the sentence of detention was not a sentence of imprisonmentwithin the meaniug of section 15a of the Criminal Procedure Code as amendedby Ordinances Nos. 47 of 1938 and 59 of 1939. The Court should have, there-fore, before imposing the tine, taken into consideration the means of theaccused persons and complied 'with the provisions of . the Payment of Fines(Courts of Summary Jurisdiction) Ordinance.
^^lPPEAU from a judgment of the Magistrate’s Court, Xuwara Eliya.
W. D. Gunasekera, with H. B. White, for the accused appellants.
N. T. D. Canekeratne, Crowu Counsel, for the Attorney-General.
Cur. adv. vult.
21 – N. L. R. Vol. – Lni
240
PULiLE J.—Amolis Appu v. Eswarapatham
December 4, 1951. Punr-fi J.—
The appellants who are respectively the first and second accused werecharged with four others with committing house-breaking and theft.The appellants alone were convicted after a summary trial, and each ofthem was sentenced on the 31st October, 1951,' on the charge of house-breaking to detention until the rising of the Court and to pay a fine ofBs. 1,000, in default six months’ rigorous imprisonment, and on thecharge of theft to pay a fine of Bs. 10, in default one week’s rigorousimprisonment. If the fine was paid the complainant was to receiveBs. 900. Bail was ordered in a- sum of Bs. 2,000 with one surety, in theevent of appeal. Bail was not furnished and the appellants werecommitted to prison the same day.
The only point urged against the convictions is that there has been amisjoinder of charges in that the fourth accused was charged with thedishonest retention of two of the stolen articles. I do not think there isany substance in the objection because all the six accused persons werecharged jointly with house-breaking and theft and therefore theadditional charge against the fourth accused arising out of the sametransaction did not constitute a misjoinder.
The second point taken is that the sentences of fines, especially on thecount of house-breaking, have been imposed without compliance withthe provisions of the Payment of Fines (Courts of Summary Jurisdiction)Ordinance, No. 49 of 1938. For the purpose of applying section 2 of thisOrdinance it must be shewn that the appellants were not sentenced toimprisonment. Now the sentence of detention is not a sentence ofimprisonment when one has regard to section 15a of the Criminal Pro-cedure Code (Cap. 16) as amended by Ordinances Nos. 47 of L938 and 59of 1939. This section prohibits the passing of a sentence of imprisonmentof less than seven days. I am, therefore, of the opinion that the learnedMagistrate should have, before imposing the fines, taken into considerationthe means of the appellants and not fixed default terms or committed theappellants to prison without giving his mind to the matters laid down insections 3 and 4. The manner in which the Court should apply theOrdinance is laid down by Gratiaen J., in re Velin et al.1 The resultingposition is that their detention in prison is illegal.
I would affirm the convictions but set aside the sentences, pro forma-,and order that the appellants be released immediately. The record willgo back to the learned Magistrate to enable him to pass sentence aftercomplying with Ordinance No. 49 of 1938.
As the appellants have been in prison since the 31st October thelearned Magistrate will in assessing the sentence take this factor intoaccount.
Convictions affirmed.Sentence varied.
i (1951) 52 N. L. R. 337.