( 328 )
NICHOLAS APPU v. KTJRUAYYA.
P. C., Colombo, 85,092.
Cruelty to animal—Ordinance No. 7 of 1862, s. 1—Ordinance No. 16 of 1865,s. 53—Sentence—Gratification for screening accused from punishmentfor cruelty to animal—**enalCode, s. 211—Sentence of imprisonment—
Legality of punishment.
Upon a charge of crueltyto animal laidunder section1of the
Ordinance No. 7 of 1$62 itis competent toa Magistratetopass a
sentence of imprisonment, though only a fine is imposable under it,because the Ordinance No. 16 of 1865, section 53 (2), sanctions imprison-ment for such an ofience.
H'^ accused was charged with offering oi e rupee to thecomplainant, a policeaonstable, asgratificationtoscreen
him fro oi legal punishment for c&uelty to a bu”
( 329 )
It appeared that the accused, when arrested for using a bull in 1904.a cart with a sore neck, stuck two 50-cent pieces into the belt of February id.the constable, who, notwithstanding, brought him up before the*
Municipal Court and had him fined Bs. 2.50 for such cruelty undersection 1 of Ordinance No. 7 of 1862.
The constable then prosecuted the accused before the PoliceCourt of Colombo under section 211 of the Penal Code foroffering him the gratification. The Magistrate (Mr. W. E. Thorpe)found the accused guilty and sentenced him to one month’srigorous imprisonment.
The accused appealed.
Watson, for appellant.—The charge of cruelty to appellant ispunishable with fine only under section 1 of Ordinance No. 7 of1862. The police officer could not arrest the accused without awarrant in such a case under clause 3 of schedule 2 of theCriminal Procedure Code. The alleged offer of gratification couldnot be considered an offence, because it is said to have been madeto free him from an illegal arrest. Section 53 (2) of OrdinanceNo. 16 of 1865 provides imprisonment for cruelty to animal,but that provision must be considered to have been repealedimpliedly by the later enactment contained in the CriminalProcedure Code.
29th February, 1904. Mcntcbeiff, J.—
It seems that the appellant was fined Bs. 2.50 in the MunicipalCourt of Colombo, in terms of Ordinance No. 7 of 1862, section 1,for cruelty to a bull. A person committing an offence under theOrdinance is liable to a fine not exceeding £5. .
He was then charged in the Police Court of Colombo withgiving Be. 1, as a gratification to screen him from legal punishmentfor the offence of cruelty to an animal, to a constable who tookhim into custody in Kollupitiya, an offence which may be punishedunder section 211 of the Peilal Code (if the offence to escapepunishment for which the gratification was given is punishablewith imprisonment not extending to *ten years) “ with imprison-ment of the description provided, for the offence for a term whichmay extend to one-fourth part of the. longest'term of imprisonmentprovided for the offence, or with fine, or with both.
Now, there is no “ term of imprisonment provided for theoffence ” by the Ordinance unties which the appellant wasconvicted, No. 7 of 1862. Nevertheless, the Magistrate of thePolice Court sentenced him to a inbnthTs imprisonment.
( 330 )
1904.The charge against the appellant in the Municipal Court was
February 29. that of cruelly ill-treating and torturing a black bull by usingMohcreiff, it in bis single bullock cart while the animal was suffering from
J.a sore on its neck. Although the offence is not punishable withimprisonment under Ordinance No. 7 of 1862, “ any person who,within the limits of any town, wantonly or cruelly abuses, beats,or tortures any animal, ” is liable to a fine not exceeding £5, orto imprisonment not exceeding three months, under the PoliceOrdinance No. 16 of 1865, section 53 (2). The later provisioncertainly includes the offence for which the appellant wasconvicted in the Municipal Court, and makes it punishable withimprisonment.
I think that, although the appellant was not charged underOrdinance No. 16 of 1865, the offence committed was, nevertheless,one “ punishable with imprisonment, ” and that the Magistratecould in this case have sentenced the appellant to imprisonmentfor a fourth of three months. The sentence seems to be in excessof the Magistrate’s powers. I think that the case would be metby setting aside the sentence and substituting a fine of Rs. 10, andin default of payment fourteen days’ imprisonment.
NICHOLAS APPU v. KURUAYYA