SOERTSZ J.—Cassim v. Abdurasak.
1937Present: Soertsz J.
CASSIM v. ABDURSAK.
126—P. C. Batticaloa, 44,904.
Appeal—Conditional order of discharge—Not a final order—Criminal Procedure
Code, ss. 325 (1) and 338 (1).
There is no right, of appeal from an order under section 325 (1) of theCriminal Procedure Code discharging am offender conditionally on hisentering into a recognizance to appear for sentence.
Anchapullai v. Baker (31 N. L. R. 149) not followed.
Culanthaivalu v. Somasundram (2 Bal. 122) followed.
^^PPEAL from an order of the Police Magistrate of Batticaloa.
In this case the accused who was found guilty of an offence undersection 433 of the Penal Code was not convicted but was dischargedconditionally on his entering into a recognizance in one hundred rupeesto be of good behaviour and to appear for conviction within one year.
C. T. Olegasagarem, for complainant, respondent, takes preliminaryobjection.—An order of discharge made under section 325 (1) (b) of theCriminal Procedure Code is not appealable. It is only a conditional orderand does not terminate the proceedings. It bears a close resemblance toan order made under section 88 of the Criminal Procedure Code. It washeld by a Full Bench in Culanthaivalu v. Somasundram1 that an orderunder section 88 is not appealable. In essentials, the effect of an orderunder section 325 (1) (b) is similar to that of an order made undersection 88 (King v. Ratnam ”). To come nearer the point, it has beenexpressly held that an order under section 325 (1) (b) is not appealable—Sanders v. Pary*; Hadjiar v. Charles'. There is, however, a conflictingdecision in Anchapullai v. Bakerbut in that case, certain decisions werefollowed where the ruling was only to the effect that when an accused isdischarged and the complainant is referred to his civil remedy, the latterhas a right of appeal.
L. A. Rajapakse, for accused, appellant.—Culanthaivalu v. Somasundram(supra) is not applicable to the present case because that was a decisionrelating to section 88 of the Criminal Procedure Code. It has beenexpressly decided fairly recently that an order under section 325 (1) (b)is appealable, Anchapullai v. Baker (supra), where an earlier decision wasfollowed, viz., Inspector of Police v. Fernando.
Cur. adv. vult.
May 27, 1937. Soertsz J.—
Mr. Olegasagarem has taken the preliminary objection that there is noappeal from the order made in this case. The order was that the accusedwho was found guilty under section 433 of the Penal Code “ is notconvicted but is discharged conditionally on his entering into arecognizance * in one hundred rupees with one surety to be of goodbehaviour, and to appear for conviction during a period of one year”.
» (1904) 2 Bal. Rep. 122.* (1926)7 Law Ret.161.
(1928) 30 N. L. R. 212.* (1929)31 N. L. R. 149.
(1904) 1 Bal. Rep. 22.• (1929)30 N. L. R. 482.
SOERTSZ J.—Cassim v. Abdumsak.
This order was made under section 325 (1) of the Criminal ProcedureCode. But for certain local decisions, I should have reached, withoutmuch difficulty, the conclusion that there is no right of appeal from suchan order. Section 338 (1) of the Criminal Procedure Code says, “ anyperson who shall be dissatisfied with any judgment or final orderpronounced by any Police Court …. in a criminal case ormatter to which he is a party may prefer an appeal to the Supreme Courtagainst such judgment for any error in law or fact ” subject to theprovisions of sections 335, 336, and 337. On the face of it an orderdischarging an offender conditionally on his entering into a recognizanceto appear for sentence when called upon during a certain period, is not afinal order. Such an order is not an unqualified discharge. It merelydeclares that in the opinion of the Court the charge against the accusedhas been proved, but without entering a conviction and awardingpunishment, the Court postpones those matters. In the event of theconditions imposed by the recognizance being observed by the accused forthe period stated, his discharge becomes absolute and I suppose, he isentitled thereafter to plead it as Autrefois acquit if he is confronted withthe same charge. If, however, he violates any of the conditions of therecognizance, the occasion then arises for a conviction to be enteredagainst him and for sentence to be passed on him. There is also thepossibility that he may be discharged under section 326 (1) at any timeduring the period of the recognizance. On the occurrence of any of thosethree contingencies, it may be that a right of appeal accrues to theaggrieved party. But till then it cannot, in my opinion, be said thatthere is a final order. My attention has, however, been called to someconflicting decisions on this point. In the case of Anchapullai v. Baker'JLyall Grant J. said “ It has been more than once held by this Court thatthere is a right of appeal from an order under section 325 (1) on theground that it was a final order …. He referred to the case ofInspector ctf Police v. Fernandos in which Akbar J. following anotherjudgment of Lyall Grant J. in P. C. Dandagamuwa, Revision No. 670(S. C. M. 31.10.28) to the same effect, held that where an accused personis warned and discharged the remedy open to the complainant is by wayof an appeal. The case actually before Akbar J. was a different case fromthe present. He was dealing with an order warning and discharging theaccused, and such an order may properly be regarded as a final order.Akbar J. in the course of his judgment referred to the cases of Suppiah v.Loku Banda ' and Schokman v. Johnbut in those cases too the ruling wasthat where a Police Magistrate refers the complainant to his civil remedyand discharges the accused, the complainant’s remedy is to appeal undersection 338. So that there are really only two judgments among thosecited to me that deal directly with the question whether there is an appealfrom an order under section 325 of the Criminal Procedure Code, and boththose are judgments of Lyall Grant J. On the other hand there are severalcases in which it was held that an order under this section is not anappealable order. In Sanders v. Pary6, Moncrieff A.C.J. considered
1 31 N. L. B. 149.• 30 N. L. B. 482.
6 Bal. BeporU 22.
3 C. W. B. 127.* 4 C. W. B. 93.
The. Times of Ceylon Co. v. The Attorney-General.
the question carefully and held that an appeal does not lie. Then in thecase of Culanthaivalu v. Somasundram1, the Full Bench (Layard C.J.,Moncrieff and Middleton JJ.) held that an order made under section 88of the Criminal Procedure Code requiring a person to execute a bond tobe of good behaviour for a certain period is not a final order and noappeal lies from it. The reasoning in that case is applicable to this.A final order is an order which terminates the case. The order madein this case does not terminate it. Under section 326 (c) of the CriminalProcedure Code, the Court may vary the condition of the recognizance,and may …. discharge the recognizance. Again under section327 (4) the Court on being satisfied that …. has failed to observeany condition of his recognizance may without any further proof of hisguilt convict and sentence him for the original offence. So that the caseis still pending and that fact necessarily implies that there has been nofinal order. I would, therefore, sustain the preliminary objection anddismiss the appeal. I would add that if I had to consider the appeal onits merits, the result would not have been different.
CASSIM v. ABDURSAK