030-NLR-NLR-V-06-DISSANAYAKE-v.-ANTHONY-FERNANDO.pdf
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1802.
December 1.
DISSANAYAKE v. ANTHONY FERNANDO.
P. C., Panadure, 13,373.
Appeal—Criminal Procedure Code, s. 385 (g)—-Conviction for criminal trespassand order thereon on accused to enter into bail bond to keep the peace—Right of accused to appeal from such order—Conviction of accused, unders. 438 of the Penal Code, for criminal trespass with intent to commit theoffence of taking forcible possession of a field by criminal force—Illegalityof conviction.
An order made on an accused who had been convicted of an offenceunder section 433 of the Penal Code to enter into a bail' bond to keepthe peace is ah appealable order under section 335 of the CriminalProcedure Code.
Casim v. Kandappa (5 N. L. B. 311) commented on.
The conviction of a single person for criminal trespass, with intent tocommit the offence of taking forcible possession of a child by criminalforce, is not legal, because the offence intended to be committed may becharged against the members of an unlawful assembly, but not against asingle person.
T
HE complaint against the accused was that he entered a fieldwhich was said to belong to the complainant and reaped a crop
of paddy sown by the complainant. The accused claimed the field,
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as also (he crop, alleging that he had sown it. The Police Magis-trate framed two charges: one of theft under section 367, and the■other of criminal trespass under section 433. After hearing the■evidence adduced the Police Magistrate acquitted the accused ofthe charge of theft, but convicted him of criminal trespass, andordered him to enter into a bail bond to keep the peace for a termef Biz months.
The accused appealed.
Samaratoickreme, for respondent, took the preliminary objec-tion that no appeal lay, as it was from an order binding over tokeep the peace (Carim v. Kandappa, 5 N. L. B. 311).
Schneider, for appellant.—The case cited does not apply.Bonser, C.J., held in it that there was no appeal from a sentenceof a fine of Bs. 20 coupled with an order to keep the peace. Theground of that decision was that section 335 (g) enacts that there isno appeal without the leave of Court, “ where an accused has beensentenced by a Police Court to a fine not exceeding twenty-fiveTupees without any other punishment.” “ Punishment ” is notdefined in the Criminal Procedure Code. Section 3 of thatCode enacts that words not defined in it are to be deemed tohave the meanings attributed to them in the Penal Code.Bonser, C.J., stated that “ punishment ” is defined in the PenalCode, but that statement is not quite correct. Section 52 of thePenal Code only enumerates the punishment. The present casedoes not fall within section 335 (g). Hence the decision citeddoes not apply. [Grenier, A.J.—Then, do you mean to contendthat, although there is no appeal from a sentence binding over tokeep the peace coupled with a fine not exceeding Bs. 25 or with aterm of imprisonment not exceeding one month, yet there is anappeal as of right from a bare sentence binding over to keep thepeace?] I would submit it is so, although it is an anomaly. Toascertain whether an appeal lies in any particular case, we should'refer to that section of the Code which deals generally withthe right of appeal. That section is 338. It gives an appealto any person dissatisfied with any judgment or “ final order, ”subject to the exceptions- in sections 335, 336, and 337. Thesentence appealed from does not fall within any one of the excep-tions in section 335, as it is a bare order to enter into a bond to keepthe peace. This is a “ final order ” within the meaning of section338. It is “ final,” because it concludes the matter so far as theaccused is concerned. The accused is dissatisfied with that order,and he has an appeal as of right, not only on the law but on thefacts also. If the Supreme Court is not disposed to uphold the
1002.
December 2.
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1902. contention as regard the right to appeal, this is a case deserving ofDecember l. being dealt with by way of revision. The conviction is on the faceof it wrong. The accused has been convicted of criminal trespassbecause he entered upon a land in the occupation of another, theintent being to commit an offence. The Police Magistrate calls“ forcibly taking possession ’’ an offence. Such an offence isunknown to the Penal Code.
Counsel argued also as to the conviction of the accused withintent to commit the offence of taking forcible possession of afield by criminal force, under section 433 of the Penal Code.
1st December, 1902. Grenier, A.P.J.—
A preliminary objection was taken to this appeal on the groundthat the order made by the Magistrate requiring the appellant toenter into a bond to keep the peace for a term of six months wasnot an appealable one. I must confess that I was at first inclinedto listen to this objection, especially as it was urged that there was-authority in support pf.it.
The learned counsel of the respondent referred me to a judg-ment of this Court pronounced by the late Chief Justice, and'reported in 5 N. L. R. 311, in which he held that no appeal layagainst a sentence of fine of Rs. 20 coupled with an order to keepthe peace, and that binding over a party to keep £he peace is nota punishment under the Penal or Criminal Procedure Code.While agreeing with the Chief Justice in holding that the term“ punishment ” does not embrace the act of binding over a partyto keep the peace, the term “ punishment ” not being definedunder the Penal or Criminal Procedure Code, I still think that anorder of the character under consideration closely falls within thepurview of section 338, which gives the general right of appeal in .both Police Courts and District Courts. That section says, “ Subjectto the provisions of the last three preceding sections, any personwho shall be dissatisfied with any judgment or final order pro-nounced by any Police Court or District Court in a criminal caseor matter to which he is a party may prefer an appeal to theSupreme Court against such judgment for any error in law or infact.”
Now, the provisions which exclude an appeal in the case of aPolice Court are the provisions to be found in section 335, sub-sections (c), (/), and (g). In cases falling under (/) and (g) the leaveof the Court is necessary in order that the appeal may be entertainedby the Supreme Court. The words of sub-section (/) are as follows:
“ Where an accused has been sentenced by a Police Court to aterm of imprisonment not exceeding one month without any
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other punishment,” and the terms of sub-section (g) are as follows:“ Where an accused has been sentenced by a Police Court to a finenot exceeding twenty-five rupees without any other punishment.”
In the present case the accused has not been sentenced in termsof sub-section (/) or (g) to require the leave of this .Court to appeal,but an order final in its nature and effect has been pronouncedAgainst him, as I take it, in accordance with the provisions ofsection 838. Clearly an appeal from such an order cannot be saidto be governed by the provisions of section 335, sub-sections (/) and(g). That order stands by itself, uncontrolled by the provisions ofthe sections I have referred to, and must be dealt with as a final-order pronounced by a Police Court in a criminal case, and inrespect of whioh an appeal may be preferred, as a matter of right,to the Supreme Court.
For these reasons I am of opinion that an appeal lies in thiscase, and that the objection taken by the respondent’s counsel mustbe over-ruled.
On the merits of this appeal there can be no doubt whateverthat the Magistrate has convicted the appellant of an offencewhich is not known to the Penal Code. The counsel for therespondent candidly admitted this. He has convicted him of theoffence of criminal trespass with intent to commit an offence,the offence being to take forcible possession of a field by use ofcriminal force. This may be charged against -the members of anunlawful assembly as the common object of such an assembly, butit is inapplicable in the case of a single accused as in this case. TheMagistrate has convicted the appellant under section 433, but Ifail to find any provision in the Code which makes it penal to• take forcible possession of land by use of criminal force, whateverthe words used by the Magistrate in the terms of the convictionmay mean. I see- that the alternative charge originally framedagainst the appellant was one of theft, but for some inscrutablereason that charge appears to have been abandoned, and the othercharge which I have alluded to been substituted.
In these circumstances, it only remains for me to quash theseproceedings.
1902.
December
GaENTEE,
A.P.J.