108-NLR-NLR-V-21-KACHCHERI-MUDALIYAR-v.-MOHOMADU.pdf
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[Full Bench.]
Present : Bertram C.J. and Ennis and De Sampayo JJ.
KACHCHERI MUD ALIY AR v. MOHOMADU.
002—P. C. Anuradhapura, 48,906.
Attempt to commit an offence—Limitation of s. 490 of ike Penal Code—
The English and Roman-Dutch Criminal law in Ceylon.
An attempt to commit an offence not punishable under the Ceylon PenalCode is itself not an offence, except when the particular enactment creatingthe offence makes' such attempt punishable.
The Ceylon Penal Code abolished not only the' law administered m thisColony known sb “ the Criminal law of the United Provinces ” or as “ the -Boman-Dutch law, ” but also the English criminal law, which, to a certainextent, had been imported -into the jurisprudence of this Colony.
l~j~lHD facts are set out in the judgment.
Arulanandan, for appellant.—The accused had not crossed theboundary with the bags of paddy, and hence he cannot be convictedof transporting the paddy into the Centred Province. Granting
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1920.
Kaaheheri
MudcUiyar
v.
Mohomadu
atgumenti causa, that the facts proved in the case constitute anattempt to transport the paddy into the Central Province, such anattempt is not punishable under our law. Section 490 of the PenalCode does not help the prosecution, feu; it is expressly limited tooffences punishable under the Code. The breach of the regulationsmade by' the Food Controller is not an offence under the PenalCode, nor can the English law come to the rescue of the prose- .cution, for the English criminal law was never introduced intoCeylon. If the decision of the Full Court in Regina v. Mendis 1 meantto hold that the English criminal law prevails in Ceylon, that viewis wrong. The following qualification of Chief Justice Burnsideis worthy of notice: “ And although it may be that no directexpression of the Sovereign’s will or express legislation can be founddeclaring English criminal law in force . . . . ”
On the other hand, both the Proclamation of September 23, 1799,and Ordinance No. 5 of 1835 expressly declare the Roman-Dutchcriminal law as the law in force in Ceylon. The Penal .Code abolishedthe Roman-Dutch criminal law, and, therefore, the only criminallaw in force in Ceylon is the Penal Code. The case of Andris v.Salman a is no authority, as it merely follows the case of Regina v.Mendis.1
Garvin, S.-G. (with him Jansz, C.C.), for the Crown.—Before thepassing of the Ceylon Penal Code, it was held by the Collective Courtin Regina v. Mendis 1 that much of the English criminal law was inforce in this Colony. The Penal Code, while it expressly abolishedthe Criminal law known as the Criminal law of the United Provincesor as the Roman-Dutch law, did not make any mention of theEnglish criminal law. Therefore, on the principle expressio urdusexclusio dUeriiis, the Legislature must have intended to retain theEnglish criminal law. After the passing of the Penal Code, Clarence
J.held that it did not abolish the English criminal law. Andris v.Salman 2. It was never clearly Understood how much of the Englishlaw had been introduced into the Colony.
Cur. adv. vult.
February 3, 1920. Bebtbah.C.J.—
This is a case which has been reserved for the consideration of theFull Court on a point of some importance, namely, the questionwhether by the law of this Colony, independently of section 490of the Penal Code, an attempt to commit an offence is itself anoffence. The question arose in this way. The accused was prose-cuted for the breach of an order made by the Food Conntroller inpursuance of regulations made by the Governor by virtue of an Orderof the King in Council promulgated in view of the circumstancesof the recent war. I may remark incidentally that, in order to
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enable the Court to deal with this offence, it is necessary for us torefer to publications only accessible in various numbers of theGovernment Gazette; and, further, speaking generally, to enablethis Court to deal with cases of breaches of these food regulations,it may be necessary to refer to detached orders and amendmentsof these orders appearing in various numbers of the same publica-tions. It would be a great convenience for the administration ofjustice, in this particular, if all these regulations and orders, and theenactment on which they are based, were collected in a convenientform, and such a publication would be of assistance, not only to theCourt, but also to those who have to advise the inhabitants of theColony with regard to their legal obligations. We brought thismatter to the attention of the Solioitor-General in the course ofthe argument, and I have no doubt that appropriate measures willin due course be taken.
The charge against the accused was that he committed a breachof an order, which prohibited the transport, by any means, fromthe North-Central Province, except on permit from the GovernmentAgent. The accused had, in fact, obtained a permit to transportpaddy, but the means by which he was to transport it were specified,namely, “ rail. ” In disregard of this stipulation, he was carryingpaddy towards the border of the North-Central Province, when hewas stopped. He, therefore, had not completed the offence. Thelearned Magistrate thought himself justified in convicting himof an attempt, and imposed a sentence upon him, which includedthe forfeiture of the paddy which he was attempting to carry outof the Province.
The regulations under the Order in 'Council do not make it anoffence to attempt to contravene any of the orders issued by theFood Controller. Section 490 of the Penal Code in terms isrestricted to offences against the Code. We have to consider, there-fore, whether the accused in this case, even supposing what he haddone would in law constitute an attempt to infringe the regulation inquestion, had by virtue of that attempt been guilty of any legaloffence.
– This is a question which has a history. It depends upon' thetheory that at a certain period of the history of this Colony {herewas in force a certain substratum of law derived from the Englishcriminal law. In the year 1883, before the enactment of ourpresent Penal Code, this question was discussed in a judgmentof the Supreme Court, see Regina v. Mendis,1 and the opinionwas there expressed that, in a way not very clearly defined, acertain body of the English criminal law had been importedinto the jurisprudence of this Colony. It was pointed out that theLegislature had for some time proceeded upon the supposition thata certain portion of the English criminal law was in force in the
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Bkhtram
CJ.
Kaeheheri
Mudaliyar
v.
Mohomadu
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1980.
'Bertram
CUT.
Kachcheri
Mudaliyar
v.
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Colony, and that Judges had also given judgments upon the samesupposition, and the Full' Court, therefore, expressed the opinionthat there had been a certain gradual importation of the Englishcriminal law into th'e Colony by means of judicial interpretation.After that judgment our Penal Code was enacted. But shortlyafter the enactment of the Penal Code, this precise question cameup for consideration before Clarence J., who was one of the Judgeswho had previously considered the general question of the introduc-tion of the English criminal law into our own criminal system.See Andris v. Salman.1 He there definitely expressed the view thatthe rule of English law under which an attempt manifested by asufficiently distinct overt act to commit an offence, whether malumin 86 or malum prohibitum, is itself an offence. That decision isdated in the year 1889; and it never appears to have been consideredby this Court since that date. If that decision is right, then thequestion brought before us must be answered in the affirmative. Iam not, however, prepared to hold that the views there expressedby Clarence J. are in accordance with the principles of the law ofthis Colony.
The question really depends upon the interpretation of the PenalCode. It may very well be that the Legislature supposed that theEnglish criminal law was to a certain undefined extent in force inthis Colony. It is also noticeable, as the Solicitor-General haspointed out, that section 8 of Ordinance No. ,12 of 1852 pre-supposesthat according to the law of this Colony an attempt to commit anoffence is itself an offence. But we have to consider not the pre-suppositions of the Legislature, but what was the intention of theLegislature in enacting the Penal Code in the year 1883.
To begin with, when a Code of this kind is enacted, the primifacie intention is .that it should be exhaustive. That intentionrequires no specific expression in the Code to give it effect. It isunderstood in the nature of the case. But by section 2 the Codeexpressly declared that “ every person shall be liable to punishmentunder this Code, and not otherwise, for every act or omission con-trary to the provisions thereof, of which he-shall be guilty.” Thesewords do not expressly repeal any existing legislation or commonlaw, but they indicate a general intention on the part of theauthors of the Code that this Code was to be looked to as the realsource of criminal justice.
Then, there is a saving in section 4 of the provisions of any specialor any local law. These expressions are defined, “ special law ”being a law applicable to a particular subject, and “ local law ”being a law applicable only to a particular part of Ceylon. It was,therefore, clearly' intended, though not declared, that all generallegislation of the nature of this Code should be repealed,' exceptspecial and local laws. The only difficulty is caused by section 3,
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which declares that so much of the criminal law heretoforeadministered in this Colony as is known as “ the Criminal law ofthe United Provinces, ” or as “ the Boman-Dutch law, ” is herebyabolished.
Here is an express abolition of a certain body of the common law.It is suggested that as the Supreme Court, before the enactmentof this Code, had declared that there was in force in this Colony, inaddition to the Boman-Dutch law, which was itself the commonlaw, also a certain portion of the English criminal law, therefore,on the principle expressio urtius exclusio alterius, the Legislature musthave intended to retain in force that body of English law whichwas said to exist on the authority of the Supreme Court.
1920.
Bebtsah
C.J.
Kaeheheri
Mudaliyar
v.
Mohomadu
I do not think that that is a correct inference. The specialreference to “ the Criminal law of the United Provinces ” and to “ theBoman-Dutch law ” must be explained, I think, historically. In theyear 1799 a Proclamation of the Xing was issued declaring that theadministration of justice and police in the Island of Ceylon shall beexercised by all Courts, civil and criminal, according to the laws andinstitutions that subsisted under the ancient Government of theUnited Provinces. In the year 1835, by Ordinance No. 5 of thatyear, certain old Proclamations were repealed. But there was anexpress saving of this declaration that the administration of justiceand police shall be exercised by all Courts, civil and criminal,according to the laws and institutions of the ancient Governmentof the United Provinces, which laws and institutions, the Ordinanceproceeded, “ are hereby declared to be still law, and shall henceforthcontinue to be binding and administered throughout the saidmaritime provinces and their dependencies. ”
In 1852, by Ordinance No. 5 of that year, it was declared that thelaw administered within the maritime provinces for the trial andconviction of any person for any crime or offence committed within-such provinces is hereby declared .to extend and thereby applyto like crimes and offences within the Kandyan Provinces. Therewas, thus, by express statutory enactment, an establishment of theCriminal law of the United Provinces in this Colony, and it wasonly natural that the compilers of the Code should take steps torepeal this express statutory provision. I do not think that byso doing they intended to retain in force an undefined body ofcriminal law which had insinuated itself into the system of thisColony. Such a course' would be contrary to the whole policy ofthe Code, which is that the criminal law should be defined andshould be in such form as to be capable of administration in allparts of the Colony by both principal and subsidiary Courts, andfurther, that it should be in such a form that the population of theColony should clearly understand their obligations.
The Solicitor-General, who argued the question before us with .great fairness, pointed out to us the great inconvenience which
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C.J.
Kacheheri
Mudaliyar
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Mohomadu
would exist if tins unascertained body of law were held in force in thisColony. There is no provision as to punishment, unless we suppose 'that the undefined punishments of the English law are also in force.There is no provision as to jurisdiction. Further, it would be aremarkable state of affairs if all the common law misdemeanours ofthe English criminal law might at any moment be said to be inforce in this Colony for the purpose of the consideration of anycase outside our own Penal Code, which might by argument be'brought within some English principle. The Solicitor-General alsopointed out to us that, as a matter of fact, in the case of statutoryoffences, it is only very seldom that an attempt to commit an offenceis a matter with which those interested in the administration of thestatute have any occasion to concern themselves. -It might verywell be that, in this case, as suggested by my brother De Sampayo, itwas not the intention of the Food Controller to punish an attemptto transport. If the attempt was successfully impeded, the objectwould be already attained. That is a matter which we need notdetermine, as, I think, we are of opinion that the general principlelaid down by Clarence J. in his judgment is not one which shouldreceive the endorsement of the Full Bench of this Court.
As the matter is of public importance, I might incidentally pointout that there appears to be no justification for the action of thelearned Magistrate in forfeiting the bags of rice, which were thesubject of the supposed offence. The regulations themselves do notimpose forfeiture as one of the punishments to which a personinfringing the regulations may make himself liable, nor does itappear to me that the Order in Council authorizes the imposition ofsuch a punishment, although it is possible that special regulationsfor the forfeiture by civil proceedings of property used in connectionwith the offence might be framed under another part of the – Orderin Council.. In my opinion, for the reasons I have explained, theappeal should be allowed.
Ennis J.—I agree.
Dis Sampayo J.—I agree.
Appeal allowed.