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Present: Garvin J.
KING v. RATNAM.
544—P. 0. Jaffna, 1,880.
Order to give security—Conditional discharge—Time within whichsecurity to he given—Imprisonment—Failure to give security—Criminal Procedure Code, s. 325 (16).
Where a Police Magistrate makes an order under section 325 (6)of the Criminal Procedure Code discharging an accused condition-ally on his entering into a recognizance for his good behaviour,he has no power to commit him to prison, pending the furnishingof security.
In making such an order the Police Magistrate may specifythe date before which the security should be furnished, and,if the accused makes default, the Magistrate is entitled to entera conviction and pass sentence according to law.
PPEAL from an order of the Police Magistrate of .Jaffna.
Rajakaricr, for appellant.
Ramachandra, for respondent.
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L. M, D. de Silva, Deputy Solicitor-General (with Basnayake,
G.), as amicus curiae.—Section 325 is a difficult section to construeand it is of importance that the procedure to be followed in applyingthe section should be clearly laid down.
In the first place it should be made clear that section 93 appliesonly to Chapter VII. of the Code and has no application' tosection 325. A large number of incorrect orders are made owingto misapprehension on this point.
A Police Court can make one of two orders under section 325 :—
(а)Discharge the accused after admonition.
(б)Discharge him conditionally on his entering into a bond
to be of good behaviour and to appear for convictionwhen called upon.
[Garvin J.—These orders are made after the case is concluded.How do you reconcile them with section 190 which says that theMagistrate shall record a verdict of guilty or not guilty at theconclusion of the case ? Once an order under section 325 (6) ismade, a verdict of guilty under section 190 seems impossible becausesuch a verdict must be entered immediately on the conclusionof the case.]
Section 325 expressly says that for the purposes of an orderunder it the Police Magistrate shall not record a verdict of guilty.The sections at first sight appear inconsistent. They are reconciledwhen an order under section 325 is regarded as a conditional ordermade before the conclusion of the case. The proceedings are notconcluded but brought to a standstill for the purposes of an orderunder section 325. The order is essentially conditional. If thecondition is broken, for instance, if the accused fails to be of goodbehaviour the Magistrate can continue the proceedings from thepoint at which he stopped them, conclude the case and make anorder under section 190.
There is another point of practical importance. Section 325(1) (b) contemplates the discharge of an accused after the bondwith or without sureties is executed. It is sometimes necessaryto give time to the accused to tender the security required of him.The procedure then to be adopted is not indicated in the section.The proper procedure would be a postponement for the purposewith an indication that an order under section 325 (b) will be madeif the security is forthcoming. In most if not all cases bail oughtto be allowed for the period covered by the postponement.
November 30, 1928. Garvin J.—
I am indebted to the learned Deputy Solicitor-General for theassistance he has given me in this matter. He appeared upon ¬ice issued by this Court upon an order made by me on September
30/17( 214 )
18 last. At the conclusion of the trial the Police Magistrateelected to proceed under the provisions of section 325. Instead ofproceeding to conviction as in the case of a normal trial, for reasonsgiven by him, he decided to proceed under the section referred to,and he accordingly directed the accused, under the provisions ofsub-section (6) of that section, to come up for conviction and sentencewhenever required to do so at any time within the next three years“ giving two sureties, Rs. 200 each (with personal recognizanceRs. 200).” He concluded his order as follows : “ Accused to becommitted to rigorous imprisonment pending his furnishing suchsureties (section 93, Criminal Procedure Code.—Limit to sixmonths).”
Now, the concluding part of this order is, in my opinion, clearlywrong. The provisions of section 93 are applicable in the case ofpersons ordered to give security under the provisions of ChapterVII. of the Criminal Procedure Code. They have no applicationto the bonds contemplated by section 325. That part of the ordermust therefore' be eliminated.
In the course of the argument we have had under considerationthe position which will result in the event of the failure of theaccused to give the security referred, to in the Police Magistrate’sorder. The order itself specifies no period within which thesecurity is to be given, and the circumstances of the Magistrateproceeding to make that part of the order, which I have foundnecessary to eliminate as irregular and unjustified by law, indicatesthat security was in fact not given at the time the order was made.There is little purpose in sending the case back to the PoliceMagistrate without any reference to this aspect of the matter.Section 325 is undoubtedly an extremely difficult section to construe,but it is necessary that an attempt should be made to give it,if possible, an interpretation which will carry out what appearsto have been the intention of the Legislature. In the first place,it is to be noted that the Court is directed “ without proceedingto conviction ” to make certain orders. Those words, it seemsto me, must be construed as meaning “ without proceeding torecord a conviction.” Presumably it was the benevolent intentionof the Legislature that a person who, though having been foundguilty of having committed a breach of the law? made it appearthat his case deserved the special treatment contemplated bysection 325 should not be placed in the position of a person whohas been convicted of an offence, and hence, while he is to bedealt with for having committed a breach of the law, that breach isnot to be placed on record as a conviction of an offence. Twoalternative courses are indicated. The Court may (a) order such'offender to be discharged after such admonition as to the Courtshall seem fit, or (b) discharge the offender conditionally on his
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entering into a recognizance, with or without sureties to be ofgood behaviour, and to appear for conviction and sentence whencalled on at any time during such period, not exceeding threeyears, as may be specified in the order of the Court.
The Police Magistrate obviously intended to proceed underthe latter of these two alternatives. In a case where the accusedis prepared to, and does in fact give security at once, no difficultyarises. But cases do often occur in which the accused is not in aposition to find sureties at the moment, and when it is necessaryand desirable that he should be given time to find sureties andcomplete the recognizance. The section does not specificallydeal with such a case. But I am aware of no reason why whenmaking an order under section (b) the Court may not in the interestsof the accused specify a date on or before which the recognizanceshould be given, and adjourn the proceedings for the purpose,either remanding the accused or releasing him on bail. On theadjourned date, if the accused complies with the order the matteris at an end. If, however, the order is not complied with, whatcourse should the Magistrate follow ?
It seems to me that the order of discharge is conditional andmade for the benefit of the accused. If he fails to comply with thecondition and take the benefit of the order, the Magistrate isentitled to proceed as from the point at which lie stayed his handunder the provisions of section 325, and enter a conviction andpass sentence in accordance with section 190. With theseobservations I would send the case back to the Court below, varythe order, and direct that it be amended so as to give the accuseda fortnight’s time from the date on which this order is communicatedto the accused to comply with the conditions upon which he hasbeen given the benefit of an order under section 325 (1) (b) of theCriminal Procedure Code.
KING v. RATNAM