X)E KBETSEE J.—Per era. and At. tale.
1944Present: Soertsz J.
PERERA v. PUNCHI APPUHAMY et al.
669-670—M. C. Negombo, 38,294.
Supreme Court—Power to make an order under chapter 26 of Criminal Procedure-Code—Criminal Procedure Code, s. 347.
The Supreme Court has power under section 347 (b) of the CriminalProcedure Code to make an order under Chapter 26 of the Code in the-exercise of its jurisdiction in appeal or in revision.
A PPEAL from a conviction by the Magistrate of Negombo.
M.T. de S. Amaresekere, K.C. (with him H. W. Jayawardene), for thefirst accused, appellant.
A. G. Alles, C.C., for the complainant, respondent.
Cut. adv. vult.
February 9, 1944. Soertsz J.—
Having regard to the character, antecedents, and age of the appellant,an Ayurvedic Physician some 57 years old, in good practice for manyyears, and with nothing against him till he succumbed to this temptationunder strong pressure, it would appear, by his co-accused, I have decidedto accede to the appeal made to me to give the appellant the benefit ofthe provisions of Chapter 26 of the Criminal Procedure Code.
The question, however, arises whether it is competent for me on appealto make an order under that chapter, or whether the proper course is tosend the case back to the magistrate with a direction to him to make anorder under it. This question confronted my brother Wijeyewardene J.in the case of Fernando v. Altois1 which came before him on an applicationfor revision. In that case the accused had been convicted on his ownplea of the offence of criminal breach of trust and had been sentenced toa term of 3 months' rigorous imprisonment. Wijeyewardene J. was ofopinion that the case was one to be dealt with under Chapter 26, but,dubitanter, if I read his judgment aright, took the view that he wouldnot be justified by section 347 (b) of the Criminal Procedure Code, if hehimself set aside the conviction and ordered the accused to enter into abond. Accordingly, he proceeded to make the following order: —
“ I would, therefore, set aside the conviction pro forma and remit theproceedings to the Magistrate with a direction to him to discharge the
i 44 N. t. R. 221.
SOERTSZ J.—Perera and Punch-i Appuhamy.
accused conditionally under section 325…. on the accused
entering into a bond in such a sum and with such sureties as theMagistrate may consider adequate. The bond will provide for theaccused appearing for conviction and sentence when called on at anytime within two years.”
If I may say so, with great respect, it appears to me that when Wijeye-vvardene J. made that order he did just what he doubted he could do.He set aside the conviction and ordered the accused to enter into a bond,and all that remained for the Magistrate to do was to communicate theorder to the accused and to give him an opportunity to carry it out.It is of no material consequence that the couvietion was set aside proforma or that amount of the bond and the number of sureties were left inthe discretion of the Magistrate. If it was competent for this Court todirect that the bond should operate for two years, and that the accusedshould appear if called on within that period, it was equally competentfor it to fix the amount of the bond, and the number of sureties, if itchose to do so. But suppose Wijeyewardene -J. carried his doubt to itslogic'll conclusion and sent the case back without any directions, inorder that the Magistrate might consider the applicability of chapter 26to the facts of the case, then it would have been open to the Magistrate tosay that he did not think the case was an appropriate one for the chapterand in the result the opinion of this Court that it was such a case wouldhe ineffective. If, however, the case is remitted to the Magistrate with adirection to him to apply chapter 26, it seems to me that that wouldbe to compel the Magistrate to exercise not his discretion but ours.
In my opinion section 347 (b) amply authorises this Court to make anorder under chapter 26 on appeal. It provides inter alia that ‘‘at thehearing of the appeal the Court may … in an appeal from a
conviction alter the verdict maintaining the sentence or with or withoutaltering the verdict increase or reduce the amount of the sentence or thenature thereof ”. Although it seems to me that there is a slight confusionof verbs in the concluding part of the sentence in that as it standsit implies an “ increase ” or “ reduction ” of the “ nature ” of the" punishment ”, when “ alter ” would have been the more appropriateverb to be applied when dealing with the nature of the punishment, yetthe meaning is quite clear.
The section leaves it open to this Court to alter the verdict only, or toleave the verdict as it stands and to (a) increase the amount or (b) to reducethe amount of punishment or (c) alter the nature of the punishment. Whenthis Court acts under chapter 26, it must leave the verdict as it stands fora verdict of guilty, that is to say, that the charge has been proved is thefoundation for the application of chapter 26 but it altera the nature of thesentence or punishment.
Section 357 of the Criminal Procedure Code gives this Court the samepowers in revision except that it enacts that this Court may not convertan order of acquittal into one of conviction. For these reasons I woulddeal with the accused myself and direct that he shall be released on hisentering into a bond in a sum of Rs. 500 with two sureties to be of goodbehaviour and to appear for sentence at any time within two years on
HEABNE J.—Jnan. A.ppu and Perera.
being called on to do so. He will also pay Es. 150 ascomplainant and B,s. 100 as costs of the proceedings,are not fulfilled within three weeks of the record goingand sentence will stand.
The appeal of the other appellant is dismissed.
compensation to the-If these conditionsback the conviction
PERERA v. PUNCHI APPUHAMY et al