026-NLR-NLR-V-16-MODDER-v.-PERERA.pdf
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[In Revision.]
Present: Wood Renton J.
MODDER v. PERERA.
P.C. Colombo, 37,357.
An act which is an offence under two or more laws—Conviction under onelaw—Application to Supreme Court to quash conviction so thatproceedings may be taken under the other law. '
Where any act or omission constitutes an offence under two ormore laws, the offender shall be liable to be prosecuted and punishedunder either or- any of those laws, but shall not be liable to bepunished twice for the same offence.
'j'HE facts appear from the judgment.
Do Saram, C.C., for the Attorney-General.—The offence is onepunishable under section 62 of the Post Office Ordinance of 1908with seven years’ imprisonment. The Magistrate should.not have,under the circumstances, tried the case summarily under section 870i (186S) L. B. I P. 4 D. 46.
MS.
iftia.
Moditer «.Perera
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of the Penal Code. The application of the Attorney-General is toget the proceedings quashed so that non-summary proceedings maybe taken against the accused.
There is nothing, however, to prevent the Attorney-Generalto take non-summary proceedings against the accused even if thisconviction remains. The plea of autrefois convict would not boopen to the accused. Criminal Procedure Code, section 330 (4).
A. St. V. Jayetuardene, for the accused.—Section 8 of OrdinanceNo. 21 of 1901 is a bar to any further prosecution of the accused onthe same facts. The conviction under the Penal Code is quiteregular.
March 14, 1913. Wood Benton J.—
This is an application on behalf of the Attorney-General in revision.The accused, a Post Office peon, was charged in the Police Courtof Colombo under section 370 of the Penal Code with having, whileemployed in the capacity of a servant in the General Post Office,committed theft of a postal parcel. The Policb Magistrate convictedhim and sentenced him to one month's rigorous imprisonment,which he has undergone. The object of tjie present motion inrevision is to have these proceedings quashed and the case sent backfor non-summary proceedings under section 62 of the CeylonPost Office Ordinance, 1908 (No. 11 of 1908), which penalizes theftor dishonest misappropriation by officers of the Post Office of postalarticles in the course of transmission. The maximum penalty foroffences under that section is seven years’ rigorous imprisonment,with or without a fine. Section 89 of the same Ordinance gives thePolice Court jurisdiction to try offences under the Ordinance, whichit would otherwise be incompetent to deal with on a certificateof the Attorney-General. No such certificate was issued in thepresent case. Mr. de Saram, C.C., who appears in support of themotion for revision, has called my attention to section 330 (4) ofthe Criminal Procedure Code, which, he argues, would prevent theaccused, if the Attorney-General indicted him under the provisionsof section 62 of Ordinance No. 11 of 1908, from meeting the charge bya plea of autrefois convict. Section 8, however, of the Interprets-tion“Ordinance, 1901 (No: "21 of 1901)', provides that, where anyact or omission constitutes an offence under two or more laws, theoffender shall be liable to be prosecuted and punished under eitheror any of those laws, but shall not be liable to be punished twice forthe same offence. The offence of which the accused has already beenconvicted is in itself substantially- identical with that which wouldform the subject of a charge under section 62 of Ordinance No. 11*of 1908. I think, therefore, that the present application shouldbe dismissed.
Application refused.