075-NLR-NLR-V-58-O.-A.-PEMADASA-Appellant-and-L.-DAVID-D.-S.-I.-Respondent.pdf
1956Present ; Sinnetamby, J.
O. A. PEMADASA, Appellant, and T,. DAVID (D. S. I.),
Respondent-
S. C. 3S3—Jf. C. Matara, 40,041
Conditional release of offenders—Recognizance—Proper Porm—Criminal ProcedureCode, ss. SO, S2, 325, 327 {■!).
Before n. court etui proceed <o act under section 327 (4) of tho CriminalProcedure Code, the recognizance entered into must bo in conformity withthe provisions of section 323. Tho form of bond relating to conditional releasoof offenders under sections 325 and 326 is prescribed in Subsidiary legislationof Ceylon, Volumo I, Chapter 16, at page 113.
AjCjlPPEAD from an order of the Magistrate s Court, Matara.
It. A. Kcnnian'jara, for the accused-appellant.
T. A. de <S'. Wijcsundcrci, Crown Counsel, for the- Attorney-General.
October 31, 195G. Sisxetajibv.. J.—
The accused in this ease was on his own plea convicted under section326 of the Penal Code and ordered to enter into a bond of good behaviourfor a period of two 3-cars. He was ordered to pa3' Us. 25 as Crown costs ;presumable1, the 3[agistrate purported to act under section 325 of theCriminal Procedure Code, but lie had proceeded to convict the- accusedwhich lie should not have done if his intention was to proceed undersection 325.
In compliance with the Magistrate's order, tlie accused signed a bondbut the form of bond used is one intended for bonds entered into unclersection S2 of the Criminal Procedure Code. The accused bound himself113- the terms of that bond to be of good behaviour for two years and inthe case of making default to forfeit the sum of Ks. 100..
The accused was subsequently convicted for using obscene words undersection 281 of the Penal Code. The police thereupon moved the Courtto issue notice on the accused to show cause why the bond he hadalread3' entered into should not be cancelled. The accused appeared onnotice and had no cause to show. The Magistrate then proceeded to vacatethe bond which lie had 110 authority to do. He should either have for-feited the bond or not done so. He also proceeded to sentence theaccused to a term of six months’ R. I. presumably purporting to actunder the provision of section 327(4). That particular sub-section
provides that a Court before which a person is bound by his recognizanceto appear for his conviction and sentence on being satisfied that he hasfaifod to observe any conditions of his recognizance may forthwithsentence him for the original offence.
Bcforo, therefore, the Court can proceed to act under section 327 (4),the recognizance entered into must be in conformity with the provisionof section 325. The bond actually entered into in this case is not in eon-foj-mity with those provisions. The form of bond to be entered into undersections 325 and 326 is prescribed in Subsidiary Legislation of Ceylon,Yol. I, Chapter 16 at page 113. The form of bond entered into by.theaccused cannot in any sense be said to comply even substantially withthe form prescribed.
This question was considered by the Supreme Court in the case ofA. G. v. Dissanayake 1 reported in 55 X. L. R. page 100. At page 104,the Acting Chief Justice makes the following observations, " But unfortu-nately due to carelessness there can be little doubt the bond that wastaken by the learned Magistrate is one which comes more under sectionS2 rather than one under section 325 of the Criminal Procedure Code.It is in fact a bond not in conformity with the provisions of section 325and cannot be availed of for the purpose of conviction and sentence in.this case
It seems to me, therefore, that the learned Magistrate had no juris-diction to convict and sentence the accused for failure .to observe theconditions of the bond that the accused actually entered into. It mightincidentally be noted that the learned Magistrate did not make anyinquiry or record any facts in regard to the antecedents or characterof the person charged or to any extenuating circumstances under whichthe offence was committed. That seems to me to be a condition pre-cedent to the imposing of an order under section 325. On the other hand,the Magistrate proceeded to convict the accused which is an act consistentonly with the provisions of section 80 of the Criminal Procedure Codewhere the bond that should have been entered into is to keep the peaceand the period for which that bond can be in force is a maximum of only6 months. Carelessness on the part of the Magistrate has resulted inthis inability to legally enforce the bond which he called upon the accusedto enter into.
In view of the observations of the Acting Chief Justice in the 55 N. Tj. Ii.case Math wluch I agree, I set aside the order, which the learnedMagistrate has made on 20th February 1956.
Order set aside.
{1953) 55 N. L. if. 100.