044-NLR-NLR-V-12-FERNANDO-v.-MATHES-PULLE.pdf
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Present: Mr. Justice Wendt.FERNANDO e. MATHES PULLE.P. G., Negombo, 11,939.
Appealable order—Fine of Re. 20 and order to find security for goodbehaviour—Offence of mischief—Criminal Procedure Code, 88. 80,335.
Where the accused was convicted of the offence of mischief, inthat he uprooted a fence, and was ordered to pay a fine of Rs. 20, andalso to enter into a bond to keep the peace and to be of goodbehaviour for six months under section 80 of the Criminal ProcedureCode, and the accused appealed from the conviction and sentence onthe point of law that the order to give security was made withoutjurisdiction,—
Held (on objection taken), that the appeal was well founded,and that the appeal was entitled to be heard.
Held, also, that the order to give security was made withoutjurisdiction, inasmuch as no breach of the peace was involved inthe accused’s act of uprooting a fence.
Karamanis v. Amolis1 followed.
A
PPEAL from a conviction by the Police Magistrate (V. P.Redlich, Esq.). The facts sufficiently appear in the judgment.
E. W. Jayewardene, (with him B. Koch), for the accused, appellant.
Wadsworth, for the complainant, respondent.
Counsel for the respondent objected to the appeal being enter-tained on the ground that the order was not an appealable one.
Cur. adv. vult.
■ June 22,1909. Wendt J.—
The appellant was convicted of committing the offence of mischief(section 409, Penal Code) by uprooting a fence, and was sentencedto pay a fine of Rs. 20, with the alternative of two weeks’ imprison-ment, and to enter into a bond to keep the peace and be of good' behaviour for six months. Respondent’s counsel took the objectionthat no appeal lay. Certainly, the case of Cassim v. Kandappa,2approved by the Full Court in Cvlantaivalu v. Somasundram,®establishes that where the punishment inflicted by a Magistrate isa fine of Rs. 25 or less there is no appeal against the conviction.That is to say, no appeal upon the facts. But section 335 (2) of theCriminal Procedure Code expressly allows “ an appeal upon a matter
I (1900) 2 App. C. R. 98 (Note).8 (1901) 5 N. L. R. 311,
8 (1904) 2 Bal. 123,
1909.
June 22.
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1909.
June 22.
Wendt J.
of law ” in such a case. There is nothing in sub-section (2) whichrestricts the matter of law to one which affects the conviction. Itmay be one which affects the legality of the sentence. The explana-tion to section 335 appears to sum up the provisions of sub-section(1) as regulating appeals from “ sentences.” The only point oflaw taken in the petition of appeal and Certified by the appellant’sprootor is that the Magistrate had no jurisdiction under section 80 ofthe Criminal Procedure Code to require appellant to execute a bond,because the offence of which he was convicted did not “ involvea breach of the peace ” and was not criminal intimidation, or beinga member of an unlawful assembly. I see no reason why the appealon that matter of law should not be admitted. No decision holdingit inadmissible has been cited to me. On the contrary,'Mr. Jayp-wardene relied upon Karamanis v. Arnolis,1 in which Bonser C.J.entertained an appeal and set aside the order for security where thesentence was only a fine of Rs. 15. In The King v. Jayewardene *the substantive sentence is not stated in the report, nor is it inLebbe v. Hamid,3 but I find from my notes of the argument in thelatter case that the first accused had been fined Rs. 100 and thesecond and third Rs. 10 each. In the latest case cited by appellant,however, viz., Graham v. Alagie,4 dealt with by my brother WoodRenton, the substantive sentence was only a fine of Rs. 10. Innone of these cases, however, was the point as to the competencyof the appeal expressly taken.
I proceed to consider the point of law. The Magistrate foundthere was much bad feeling between the parties, and the evidenceshowed that at about 8 or 9 a.m. the accused in the presence of thecomplainant uprooted about 3 or 4 fathoms of the fence which hadbeen put up five days before and had as yet no cross sticks tied on.It is quite clear that no breach of the peace was involved in appel-lant’s act, and there was therefore no jurisdiction to make an orderunder section 80 of the Criminal Procedure Code. The tendencyhas been to require strict proof of a breach of the peace beinginvolved. See the cases already cited, especially that of Karamanisv. Arnolis.1
I direct that the judgment be amended by striking out the orderfor security.
Sentence varied.
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‘ (1900) 2 App. C. R. 98 (Note).3 (1903) 2 App. C. R. 99 (Note).
» (1901) 2 App. G. R. 91, ■4 (1908) 1 Weerakoon 86.