M. GOMES (S. I. Police , Crimes ) v. W. V. D. LEELARATNA

056-NLR-NLR-V-66-M.-GOMES-S.-I.-Police-Crimes-v.-W.-V.-D.-LEELARATNA.pdf


Gomes v. Leelaratna
233
Present: Sri Skanda Rajah, J.M. GOMES (S. I. Police, Crimes) v. W. V. D. LEELARATNAS. G. Apn./Gen./5j64—Revision inJ. M. C. Colombo, 27,178 and 27,374
Sentence,—Grave offence—Conditional release of offender—Inadequacy—Factors forconsideration in assessment of sentence—Penal Code, ss, 367, 394—CriminalProcedure Code, s. 325.
In a prosecution for theft of a motor car, speedy disposal of the case followed,if the accused is convicted, by adequate punishment is necessary, especiallyat the present time.
The provisions of section 325 of the Criminal Procedure Code are notapplicable to grave offences.
Observations on factors that should be taken into consideration in regardto the sentence that should be passed on an offender.
234
SRI SKANDA RAJAH, J.—Gomes v. Leelaratna
Revision of proceedings in two cases in the Joint Magistrate’s Court,Colombo.
R. Wijeygoonewardene, for accused.
D, S. Wijeyesinghe, Crown Counsel, as amicus curiae.
(Accused present on notice.)
February 28, 1964. Sbi Skanda Rajah, J.—
I consider these two cases together because the Joint Magistrate,Colombo, himself dealt with these cases together on the same dateviz., August 6,1963, and thereafter.
In order to effectively deal with them I should set out certain detailsin chronological order. In case No. 22178 a car worth over Rs. 10,000was stolen from the Fort on 11.2.1963 and the accused was detected inpossession of this car on 31.3.1963. This car originally had the numberplates-2 Sri 6014, but at the time of detection it had the number plates3 Sri 8694. The detection took place as a result of information received.The police ambushed at Norton Bridge at 3.25 p.m. and at the time ofdetection two number plates bearing No. EN 9804 were found in theluggage boot of the car. The accused was driving the car. The accusedwas produced in Court on 3.4.1963 and he was bailed out in a sum ofRs. 3,000 (bertified bail) on 16.4.1963.
Car No. 1 Sri 8439, which is the subject-matter of case No. 27,374,was stolen from the Fort on 22.4.1963, i.e., six days after the accusedwas bailed out. That car was worth also about Rs. 10,000. On infor-mation, the Fort police ambushed at Borella on 24.5.1963 at 5.30 p.m.and, while the accused was driving this car out of a garage, viz., theBaseline Motors, he was caught. The car still bore the same numberplates. A diary was found in that car and the dates on which the accusedhad stolen cars had been noted in it. This diary was a production in theMagistrate’s Court, and the Magistrate, without even investigating asto what the contents of this diary were, accepted a plea of guilt fromthe accused in both cases and he proceeded to deal with that pleaas a plea for the retention of stolen property, though in each case theaccused was charged with committing theft or in the alternative withretention of stolen property.
Though this Court called for these records on certain information thatI had received the Magistrate did not send this diary and then the diarywas called for because I thought that there must be some informationin this diary. This has been justified by the information given in thisCourt by the Inspector of Police and the entries in it.
SRI SKANDA RAJAH, J.—Gomes v. Leelaratna
235
In the first of these cases the revenue licence, which was issued in thename of Messrs Aitken Spence, to whom this car belonged and whichwas used by Ronald I aw, an executive working in that firm, was alsofound to be tampered with.
In the second of these cases the accused was bailed out in a sum ofRs. 500 with his wife as surety, though he was out on bail in a sum ofRs. 3,000 in the earlier case. This, to my mind, is either an invitationor an encouragement to the accused to commit further offences of thistype. The Magistrate would have realised, if he had referred to theSchedule to the Criminal Procedure Code, that charges under Sections367 and 394 are non-bailable offences. I am not unmindful of the factthat even in non-bailable offences accused are bailed out, but that isdone in the discretion of the Magistrate. In bailing out this accusedin the second case the Magistrate did not exercise his discretion at all.
In the first of these cases, evidence was led on 27.5.1963, the Magis-trate assumed jurisdiction under Section 152 (3), the accused pleaded notguilty and the case was fixed for trial. In the second of these cases,evidence was led on 25.6.1963, the Magistrate assumed jurisdiction underSection 152 (3) of the Criminal Procedure Code, the accused pleadednot guilty and that case was also fixed for trial. Both cases were beforethe Magistrate on 6.8.1963. In both these cases the accused pleadedguilty. The Magistrate purported to consider these pleas of guilt inthe two cases as pleas of guilt for retaining stolen property, knowing orhaving reason to believe that these cars were stolen property.
It might also be mentioned that the punishment for offences punishableunder Sections 367 and 394 of the Penal Code is three years. The Legis-lature in its wisdom had not made any distinction between these offences.Had the Magistrate only taken the trouble to find out what was in thisdiary he would not have treated the pleas as pleas in respect of retainingstolen property, because there was ample evidence in the hand-writing ofthe accused himself giving the dates of his stealing cars.
In each of these cases the Magistrate made order : “ Identificationand sentence on 9.8.63.”
Then on 9.8.1963, he called for a report from the Probation Officer,and the Probation Officer’s report is of considerable interest. But,the Magistrate does not appear to have considered the report at all.The Probation Officer reported that the accused was not a fit case forbeing placed on probation. He reported : “ The wife seems to be livingin fear of the offender ”. He further reported : “ The investigationsrevealed that it was about one year back that he began to drive taxisand it was while working in this capacity that he got involved in thispresent offence. Apart from being dishonest in his dealings towardsthe latter part of his life he had been keeping company with undesirablefriends who are said to be engaged in stealing cars. The investigationsalso revealed that he is very untruthful in providing informationregarding his past, and this is an unsatisfactory basis where probation
236
SRI SKAJNDA RAJAH, J.—Gomes v. Leelaratna
supervision is concerned. In fact, it was discovered during the latterpart of the investigations that there is a pending case against theoffender. This, however, was discovered from sources other than theoffender. In view of the offender’s unco-operative attitude and sincethere is a pending case against him, namely, case No. 12,283/M. C. Kandy,where he had been charged of dishonestly using a forged cheque andwhich case has been sent up for trial to the District Court, it is notpossible to recommend probation in this case. Probation is thereforenot recommended in this case.”
Though this report was staring the Magistrate in the face he proceededto deal with this accused under Section 325 of the Criminal ProcedureCode. He accepted his wife, “ who is living in fear of this accused ”, assurety in a sum of Rs. 500 and bound him over to be of good behaviourfor a period of three years, and in the first case he ordered him to payRs. 250 as Crown costs by monthly instalments of Rs. 20 and in thesecond case a sum of Rs. 100 as Crown costs to be paid by monthlyinstalments of Rs. 5.
Mr. Wijeygoonewardena who appeared for the accused and pleadedfor clemency cited the case of Fernando, Detective Inspector v. Alwisand another1, and drew attention to a passage at p. 112 to the effect thata revisional Court will interfere only when the sentence passed wasmanifestly inadequate and not merely on the basis that it would havepassed a heavier sentence.
I am in respectful agr eement with that observation : but, are thesesentences manifestly adequate ? I would hold that these sentences aremanifestly and scandalously inadequate.
It has been repeatedly pointed out that Section 325 of the CriminalProcedure Code would not be applicable to grave offences. It is perhapsuseful to set out the terms of that Section.
325 (1) : “ Where any person is charged before a Magistrate’sCoui-t .with an offence punishable by such Court, and the Courtthinks that the charge is proved, but is of opinion that, havingregard to the character, antecedents, age, health or mental conditionof the person charged or to the trivial nature of the offence, or tothe extenuating circumstances under which the offence was committed,it is inexpedient to inflict any punishment or any other than a nominalpunishment, or that it is expedient to discharge the offenderconditionally as hereinafter provided the Court may withoutproceeding to conviction. …”
In dealing, at least with the second case, the antecedents of the accusedshould have influenced the Magistrate. Besides, these were not trivialoffences, as I have already pointed out, and there was evidence whichwas properly admissible before the Magistrate, but he did not proceedto receive, that it was this accused who had stolen these cars. Thereport made by the Probation Officer would have shown the Magistrate
1 (1939) 4 Ceylon Law Journal, p. 111.
SHI SRANDA RAJAS, 3.—Gomes v. Leelaratna
237
that these were not proper cases to be dealt with under Section 325.Therefore, I would proceed to conviction in each of these two cases underSection 367 of the Penal Code.
I would also indicate what factors should be taken into consideration byJudges on the matter of sentence. I proceed to quote from the case ofThe Attorney-General v. H. N. de Silva1. At page 124 Basnayake, A.C.J.,(as he then was) says this : “ In assessing the punishment thatshould be passed on an offender the judge should consider the matterof sentence both from the point of view of the public and the offender.Judges are too often prone to look at the question only from the angleof the offender. A judge in determining the proper sentence shouldfirst consider the gravity of the offence as it appears from the natureof the act itself, and should have regard to the punishment provided inthe Penal Code, or other Statute, under which the offender is charged.
He should also regard the effect of the punishment as a deterrentand consider to what extent it will be effective …
The incidence of crimes of the nature of which the offender hasbeen found to be guilty.
The difficulty of detection are also matters which should receivedue consideration. The reformation of the criminal, though no doubtan important consideration, is subordinate to the others I have mentioned.Where the public interest or the welfare of the State (which aresynonymous) outweighs the previous good character, antecedents andage of the offender, public interest must prevail.” (The numbering ismine).
To these I would respectfully add :
Nature of the loss to the victim.
In this case the loss to him was irreparable, especially in view of theprohibition on the importation of cars into this country. The victimwould have been put to a great deal of inconvenience if he had to usethe public modes of transport.
Profit that may accrue to the culprit in the event of non-detection.
In view of the shortage of cars in this country and the prohibitiveprices of second-hand cars find also the demand for spare-parts, theprofits to the culprit would be immense.
Also the use to which a stolen article could be put.
Stolen cars, it is well-known, are used for committing other offences,like burglary, abduction, and so on.
These are all matters that the Magistrate should have taken intoconsideration. He has failed to discharge his duty properly in dealingwith these two cases. Therefore, in each one of these cases I wouldsentence the accused under Section 367 to a term of two years’ rigorousimprisonment. The sentence in the later case will begin to run at theexpiration of that in the earlier one. The amounts paid as Crown coststo be returned to the accused.
1 (1955) 57 N. L. R. 121.
238
SRI ARANDA RAJAH, J.—Gomes v. Leelaratna
Before I part with these cases I must also indicate the circumstancesunder which I came to send for these cases and to act by way of revision.
These cases were brought to my notice by a pseudonymous petition,copies of which had been forwarded to the Chief Justice and the JudicialService Commission. Such petitions normally find their way into mywaste-paper basket, of course, after I have read them. But when I readthis petition I felt that there must be some substance in the allegationsand that they should be verified.
Having been a Judicial Officer for a number of years, I was moved tomake representations, over a decade ago, to the Criminal Courts Commis-sion, presided over by Gratiaen, J., and of which Pulle, J., was a member,that there should be inspections of Magistrates’ Courts by competentpersons, not with a view to finding fault with their work, but with a viewto assisting them in discharging their duties properly. This I did becauseI was aware of a growing public dissatisfaction regarding the manner inwhich cases were disposed of in Magistrates’ Courts and an increasingtendency to make use of Section 325 of the Criminal Procedure Codeeven in the case of very grave offences, this being done with an eye onthe Quarterly Returns of disposals. This tendency, I felt, was notconducive to proper administration of justice.
Inspections of Courts would not be necessary if an Utopian state ofaffairs prevailed in our Courts. People concerned with the properadministration of justice should regard it as their duty to improve theadministration of justice, so that there may be a feeling in the public-mind that justice is being administered well and truly. Inspectionsshould be carried out by a competent person, as I told the Criminal CourtsCommission, competent not merely in the eye of the law, but competentto find out what is actually happening in Magistrates’ Courts. I trustI -will not be misunderstood if I say that it is not everybody who canput his finger at the proper place. I
I know that once a Judge of this Court, who was holding Sessions inJaffna was requested by the Chief Justice to inspect the District Courtthere and the District Court was inspected ; but, unfortunately, no copyof the report made by the Judge was sent to the District Judge. Thatsort of thing should not take place, for the reason the Judge whoseCourt is inspected is entitled to know in what way he could improve theadministration of justice. Besides, common courtesy would demandthat a copy of the report should be sent to him. Whenever I inspect aCourt I make no report to anyone but merely draw the Judge’s attentionto how the work could be improved.
The Quarterly Returns are useful only if they reflect the actual stateof affairs in the Court. But often they do not. I am aware of a Courtfrom which there was not even a single appeal for a period of over twoyears. The quarterly returns must have revealed that to anyonewho looked into them. If anyone looked into them he should haverealised that there was a Magistrate who was either perfect and infallible
SIRIMANE, J.—Mohamed Lebbe v. Madana
239
or that there was something radically wrong in that Magistrate’s Court.A proper inspection would have revealed that what was happening inthat Court should not happen at all.
It is common knowledge that even grave crime cases are disposed ofin an unconscionable manner, as in the two cases now before me. Thisstate of affairs should be remedied as early as possible.
I have questioned the two Inspectors of Police who were in chargeof these prosecutions and tried to ascertain from them as to why theyhad not taken steps to get the Attorney-General to move by way ofrevision. They informed me that they had submitted their reportsabout the sentence to their superior officers ; but, anyway, they do notseem to have indicated to their superiors that these punishments wereinadequate. I can understand the reluctance of police officers, who haveto appear in this Court day in and day out, to incur the displeasure ofthe Magistrate ; but, it is their duty, regardless of consequences, to seethat adequate punishment is meted out in such cases, specially in viewof the numerous thefts of cars that have gone undetected in recentyears. They should know that speedy disposal followed by adequatepunishment is a sure deterrent.
Sentence enhanced.