139-NLR-NLR-V-48-FERNANDO-P.-C.-867-Appellant-and-SENARATNE-Respondent.pdf
431
DIAS J.—Fernando v. Senaratne.
1947Present: Dias J.
FERNANDO (P. C. 867), Appellant, and SENARATNE,Respondent.
5. C. 746—M. C. Kandy, 26J67
Criminal Procedure Code—Section 325 (1)—Plea of guilt—Applicability ofsection.—Right of appeal.
Where the accused on being charged under a Defence Regulationpleaded guilt and the Magistrate recorded “ I find the accused guilty ”—Held, that this amounted to a “ conviction ” of the accused and thatthe Magistrate could not, therefore, act under the provisions of section325 (1) of the Criminal Procedure Code. It was his duty, in thecircumstances, to have imposed a sentence according to law.
Held, further, that no appeal lies against an order under section 325 (1),but the Supreme Court may deal with the case in revision.
^^PPEAL from an order of the Magistrate, Kandy.
No appearance for the complainant-appellant.
V. S. A. Pullenayagam, for the accused-respondent.
Boyd Jayasuriya, C.C., as amicus curiae.
Cur. adv. vult.
Septeber 2, 1947. Dias J.—
The accused was charged under the Defence (Control of Textiles)Regulations with having in his possession certain textiles in excess ofthat which a customer could purchase, and alternatively with transport-ing the same and failing on demand to produce the invoice, debit note orcash receipt for inspection in terms of section 14 of the Regulations andpunishable under section 59 thereof.
The accused who had originally pleaded Not Guilty to the chargesubsequently retracted his plea and pleaded Guilty. Thereupon theMagistrate recorded :
“ I find accused guiltyIn the circumstances as the
accused is not a dealer in textiles, I order accused to enter into a bondunder section 325 (1) (b) with one surety in a sum of Rs. 150/150 for aperiod of eighteen months. I confiscate the productions and forwardto the Controller of Textiles
I agree with counsel for the respondent that the complainant has noright of appeal in this case. There are conflicting single-Judge decisionson the point, but Soertsz J. in the case of Cassim v. Abdurasak1 consideredthe earlier cases and came to the conclusion that no appeal lies from anorder under section 325 (1) of the Criminal Procedure Code, because it isnot a “ final order ” within the meaning of section 338 (1) of the CriminalProcedure Code. If I may respectfully say so, I think the reasoning inCassim v. Abdurasak is sound, and I follow it.
The complainant having no right of appeal, it is open to me to considerthe case by way of revision. Ctown Counsel has kindly appeared asaniicus curiae to assist the Court.
* (1937) 38 N. L. R. 423.
48/34
432
DIAS Jf.—Fernando v. Senaratne.
Unlike section 325 (2; which applies only to trials on indictment, aMagistrate can only make an order under section 325 (1) “withoutproceeding to conviction When the accused pleaded guilty theMagistrate knew that the charge was ‘‘proved”. If he then decidedfor any of the reasons stated in section 325 (1) to bind over the accused,he had to do so “ without proceeding to conviction Therefore, thequestion is, when the Magistrate after the accused pleaded Guilty recorded“ I find the accused guilty ”, whether he thereby proceeded to convictthe accused ? In the case of Marthelis v. James1 this question wasanswered in the affirmative. What is more, the fact that the Magistratethereafter went on to confiscate the textiles shows that he regarded thatthe accused had been convicted, because such an order of forfeiture canonly be made under the Regulations after “conviction”—see section61 (2) of the Regulations.
The applicability of section 325 (1) was, therefore, ousted. TheMagistrate having convicted the accustd could not act under section325 (1) He should have proceeded to impose a sentence on the accusedaccording to law—Chelliah v. Samman'
In England the Probation of Offenders Act, 1907, contains a provisionalmost identical with the terms of section 325 (1) of our Code In Stone’sJustices' Manual (1946 edition), pages 142 and 2772, it is stated that“ This provision is not to be used as a means of evading the law, or toencourage persistent offenders in their contumacy. It cannot properlybe applied to an offence under section 4 (2) of the National Service Act.1941—Eversfield. v. Story3 . . . . A delibeerate breach of theRationing Order, 1939, is not ‘ trivial ’—White v. Hurrell Stores, Ltd.'.’'
In the present case I cannot hold that section 325 (1) was resorted to inorder to evade the imposition of the heavy fine provided by section 59of the Regulations for a first offence; nor is there any proof that theaccused has been guilty of a deliberate or persistent breach of the Regula-tions. The Magistrate apparently formed the view that there were“ extenuating circumstances ”. I cannot say that he has erred incoming to that conclusion.
Section 59 (a) of the Regulations provides for a first offence a fine notless than Rs. 500 and not more than Rs. 5,000, or with imprisonment ofeither description for a term not exceeding one year, or with both suchfine and imprisonment.
I set aside the Magistrate’s order subsequent to the words “ I find theaccused guilty”, and direct that the bond given by the accused should becancelled and discharged. In place of the order made I sentence theaccused to imprisonment until the rising of the Court.
Sentence varied.
1 (1929) 10 C. L. Bee. 36s (1921) 3 C. L. Ret. 3T.
a (1942) 1 K. B. 43T.
* (1941) 164 L. T. 334.