( 118 )
July 17,1911
WoodRenton J.
Nikapota v.Qunasekera
decisions since Sinnetamby v. Elayatamby l# although not in anyreported cases, and have had some doubt as to whether they wereright.
The question is by no means free from difficulty, and I am fullyalive to the risk, on which Mr. H. J. C. Pereira insisted in hisargument on the appeal, of the occurrence of irregularities, notalways of a trivial character, in inquiries of this kind. It wouldcertainly be most hazardous in this country if the Courts were toreceive and act upon evidence of the bad character of accusedpersons supplied off-hand by a court sergeant or some subordinatepolice officer. On the other hand, to exclude the courts of firstinstance from inquiring into the character of the accused personsafter conviction can have no other result than to make it verydifficult for them to punish intelligently. As was pointed out by theLord Chief Justice of England in Weaver's caseit has been inEngland, in considering sentences, the invariable practice to inquireinto the prisoner’s history in his own interest, and if in the courseof that inquiry facts come out which damage him, the Judge oughtto take notice of them. On the whole, I am hot satisfied that thereis anything in section 68 of the Penal Code, or in any other localenactment, to prevent the courts of trial in Ceylon from institutingsimilar inquiries, and from acting in the same way on their results.
There is no express enactment on the subject, and consequently,alike under section 100 of the Evidence Ordinance and section 6 ofthe Criminal Procedure Code, we are entitled to have regard to thelaw of England. It may be added that section 325 of the CriminalProcedure Code, which gives the Court power to release firstoffenders on probation of good conduct instead of sentencing themto imprisonment, itself recognizes an inquiry into the character andantecedents of the accused as permissible. I need scarcely addthat any investigation conducted by a court of trial after convic-tion into the character and antecedents of an accused should be aninvestigation according to the rules of evidence. On the groundsthat I have stated I would, dismiss this appeal.
Appeal dismissed'.
(1908) 2 *4. C. X.,Sup. X.
* (1908) 1 Cr. App. Rep. 12.