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QUEEN v. DANIEL.D. C., Kigalla, 836.
Right to appeal for enhancement of punishment—Section 406 of the CriminalProcedure Code—Error of law or of fact—Error in point of opinion—Right of party injured or other private complainant to appeal, in a catewhere the parties are the Crown ami the accused—Application for revisionof proceedings under s. 426—Necessity for notice of revision.
An appeal for enhancement of punishment is permissible on the groundof error of fact or of law, in cases where both imprisonment and finehare been imposed, and in the cases not excepted in sections 403, 404, and405 of the Criminal Procedure Code.
Error in point of opinion on the part of a Judge as to the degree ofinjury to a complainant, or the degree of criminality of an accused, or asto the nature or amount of punishment inflicted, does not amount to anerror in law.
Insufficiency of punishment could only be an error in law when aminimum amount of penalty had been prescribed but had not beenimposed.
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In a criminal prosecution by the Crown, the party injured or otherprivate complainant has not the right of appeal provided for in section406 of the Criminal Procedure Code.
An application for revision under section 426 will not be entertainedwithout due notice to the respondent.
r 11HE indictment in this case charged the accused with havingvoluntarily caused grievous hurt to one Mr. Dhannaratna.
The accused pleaded provocation, and admitted that he struckhim as hard as he could with the fist on the eye and on the earonce or twice, and threw him out of the verandah. The DistrictJudge found the accused guilty, and “ sentenced him to simple“ imprisonment till the rising of the Court and to a fine of Rs. 50."
The Attorney-General appealed on the ground that the judgmentof the Court below was not in conformity with the requirementsof section 372 of the Criminal Procedure Code, and that thesentence imposed on the accused was far too inadequate in viewof the circumstances of the case.
Dornhorst, for the accused, urged by way of preliminaryobject) on that, as inadequacy of sentence was neither an error of lawnor of fact, the appeal preferred should be rejected. He contendedthat no appeal lay in the present case under sections 404 or 405 ofthe Criminal Procedure Code, and that if the appeal be taken as onefrom a “ party ” as provided in section 406, it could be entertainedonly on the ground of error of law or fact, but not for mere errorof opinion on the part of the Judge in estimating the effects of thecircumstances proved in the case.
Cooke, C.C., for the Crown, replied on the preliminary objectionand insisted that the District Judge had committed a clear error oflaw in not acting conformably with section 372 of the CriminalProcedure Code. If it be held that an appeal did not lie, it wasopen to the Supreme Court to revise the proceedings undersection 426.
Canagaratne, for Mr. Dharmaratna, moved, that if the appealof the Attorney-General should fail on the preliminary objectionraised by Mr. Dornhorst, his client should be allowed to file apetition of appeal, as the party really interested in the case.
Cur. adv. milt.
12th February, 1895. Browne, J.—
The accused was charged with grievous hurt (Penal Code,section 316), and was found guilty (without its being specificallystated of what offence), and sentenced to simple imprisonmentuntil the rising of the Court and to pay a fine of Rs. 50.
When the appeal was called for argument, Mr. Dornhorst, foraccused, submitted that no appeal lay, since the Attorney-General
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appealed for the purpose of enhancing the sentence, which theOrdinance did not entitle him to do, the case falling within section406, and the question of sufficiency of sentence not being an errorof law or fact.
Were I to entertain a statement made in argument, without anyformal verification, on behalf of the would-be appellant Dharma-ratna,that the accused was never imprisoned at all, and so conclude,it might be I would have to hold, that the matter yras one fallingunder section 405 of the Criminal Procedure Code, and I should atonce reject such appeal offered. Finding, however, that sentencesof both imprisonment and fine have been passed, I must hold,following the decision in 9 S. C. C. 49, that this not being withinthe provisions of sections 403, 404, or 405, an appeal does lie forany error of law or fact.
In appealing for an enhancement of punishment, does theAttorney-General appeal for error of fact ? Apparently not, forthe accused has been convicted of the charge preferred, and not ofonly some minor offence thereunder, upon the ground that thefacts proved justified only the lesser conviction.
Does he appeal for error of law ? He does not complain thatevidence has been improperly admitted or rejected, or that factshave or have not been found, or that these required some otherverdict, or that the Magistrate had not power to impose thesentence which he did.
He has not shown that anything has been done or permitted ofwhich the law, correctly regarded, did not entirely allow. TheMagistrate may (in the Attorney-General’s judgment) have erredin point of opinion as to the degree of injury to the person atwhose complaint, made outBide the District Court, he for HerMajesty has prosecuted, or as to the degree of criminality of theaccused, and in consequence of either, or of natural inclinationto mercy, Ac., as to the nature or amount of the punishment heinflicted, all or some of which might, when advanced, impel orjustify this Court, if so empowered as under section 426, toentertain an application in revision of conviction and sentence.But I hold these are not grounds of law, nor do they disclose thatany error in law has been made which vitiates either the con-viction or sentence. Insufficiency of punishment could only bean error in law when a minimum amount of penalty had beenprescribed but had not been imposed.
I therefore rule that the appeal of the Attorney-General fails,and must be rejected. I was asked in such a contingency torevise the proceedings under section 426, but I do not know whatnotice to any such effect has been served upon the respondent
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(for no copy of notice issued is in the record), and I must declineto act as so requested.
As to the application on behalf of Dharmaratna, that he shouldbe held entitled to file a petition of appeal and be heard thereon,I hold that he is not such a party as section 406 includes in thatprivilege. He is, as I have said before, only a person who, prior tothese proceedings, put in motion the prosecution to see that acriminal offence was punished by informing her of the particularsthereof. He might have been not the person injured, but, as oftenhappens, a relative of his, or some official, as a police officer, whofirst made complaint to the Police Court. I therefore disallow hisapplication.
QUEEN v. DANIEL