035-NLR-NLR-V-52-REX-v.-JAYASENA.pdf
[Assize Court}
4L950Present Gratiasn J.BEX v. JAYASENAS. G. 22—M. G. Avissawella, 48,531
Sentence—Caseof juvenile delinquency—Generalconsiderations—Childrenand
Young Persons Ordinance, No. 48 of 1949 (not yet proclaimed), Section 21—Criminal Procedure Code, Sections 325 (2), 326 (2) (c).
The accused, who was 10 years and 6 months old, was charged with havingmurdered a child aged 8. At the trial he tendered a plea of guilt on the lessercount of wrongful confinement punishable under section 433 of the PenalCode, and this plea was accepted.
Held, that as no “ Approved School ” or Government Reformatory Sihoolwas available and it was undesirable to send the accused to the CertifiedIndustrial School at ADaggona, the principle adopted by the Legislature in passingsection 21 of the nn-prodaimed Ghildren and Young Persons Ordinanceshould always guide Courts in dealing with cases of juvenile delinquency :in the circumstances, orders should be made und'er sections 325 (2) and 326.(2) (c) of the Criminal Procedure Code.
OeDEB made at the conclusion of a trial before a Judge and Jury.
-4. C. Alles, Crown Counsel, for the Crown.
■i
Frederick TV. Obeyesekere. with S. T. K. Mahadeva, for the accused.
1 (1944) 1 K. B. 106.
November 24, 1950. Gtratiaen J.—-
The accused in this case is 10 years and 6 months old. He was chargedbefore me and an English speaking jury with having murdered a child aged8 on February 3,1950. Pending his trial, the learned Magistrate
remanded the accused to custody in the Jayasekera Home in Colombowhich he regarded as less unsatisfactory for the purpose than any other-available institution. I am glad to learn ftom the Probation Officerthat those in charge of the Jayasekera Home have done their best toprotect the accused from undesirable association with older delinquentsduring the period of over 9 months which has unfortunately lapsed beforethe accused was brought to trial in th,*s Court. Nevertheless, the absencein Ceylon of a single Remand Home reserved exclusively for thedetention of young persons awaiting trial is greatly to be deplored.
At the trial, the charge of murder failed; nor did the evidence disclosethat the lesser offence of culpable homicide not amounting to murderhad been committed. Indeed, if the testimony of Dr. Abeywardenaand Dr. ■ Tisseveerasinghe had been led with greater precision in thenon-summary proceedings on the vital issues relating to the charge ofhomicide, I am satisfied that commitment to this Court on this gravecharge would have been found unnecessary. The ease against theaccused might well have been disposed of summarily on charges withinthe jurisdiction of the Magistrate. Dr. Tisseveerasinghe’s evidencein this Court proved conclusively that the unfortunate boy alleged tohave been murdered by the accused had, in -fact, died by misadventure,and Dr. Abeywardena’s evidence proves that the accused, in any event,did not possess sufficient maturity of understanding to realise that hisconduct, wicked and reprehensible though it undoubtedly was, waslikely to cause his victim’s death. It is right that these facts should beplaced on record in view of the publicity which this case has received,particularly in the neighbourhood in which the accused and his parentsreside. The jury was satisfied, the Crown has now conceded, and I -amconvinced that no criminal responsibility attaches to the accused for-the tragic death of young Rupasinghe.
The accused tendered a plea of guilty on the lesser count of wrongfulconfinement punishable under section 333 of the Penal Code. This pleawas very properly accepted by the Crown and by the Jury. The accusedis a lad of tender years and the question of sentence has caused megrave anxiety. After the trial, I adjourned proceedings until todayin order that I might have the assistance of some official evidence inorder to determine the, punishment most appropriate to the case.
The evidence led before me today brings home once more theinadequacy of Institutions established for the treatment of young delin-quents in this country. The accused was barely 10 years old when hecommitted this crime in circumstances which shew that he is possessedof much wickedness and considerable cunning. On the other hand,he is bright and intelligent and, in the opinion of Dr. Abeywardena andof the Probation Officer, he* is co-operative and amenable to discipline.Under proper guidance of competent persons, there would be good reason
to hope that he can be diverted from his present evil propensities and.that he may in due eourse become a decent citizen. If, however, heis left in an environment in which the unjustifiable reproaches of his fellowvillagers and his school friends that he is a murderer will take some timeto die down, I fear that he is almost certain to develop into a dangerto society. It is desirable that he should be given the opportunity ofstarting a new life in new surroundings where the stigma attached tothe crime is less likely to be felt. He is too young to qualify for admissionin a Borstal Institute.»
The Children and Young Persons Act which was enthusiastically enactedby the Legislature 12 years ago was* specially designed to deal with casesof this sort, but administrative difficulties, which' I trust will one day beovercome, have so far prevented the Ordinance being brought into opera-tion. The ideal solution of sending the accused to an “ ApprovedSchool ” is therefore not available. Similarly, it is admitted that noGovernment Reformatory School exists to which this lad of tender yearscan be sent under the provisions of the Youthful Offenders’ Ordinance.The Probation Officer is of opinion that it is undesirable to send theaccused to the only Certified Industrial School in Ceylon which is function-ing at Muggona. I am therefore left to devise some other means ofdealing with the present case.•
Section 21 of the Children and Young Persons Ordinance declaresthat “ Every Court in dealing with a child or young person who is broughtbefore it, either as being in need of care or protection or as an offenderor otherwise, shall have regard to the welfare of the child or young personand shall in a proper case take steps for removing him from undesirablesurroundings, and for seeming that proper provision is made for his-education and training ”. Although the Ordinance is not yet in opera-tion, the underlying principle adopted by the Legislature in passingsection 21 must and should always guide Courts in dealing with easesof juvenile delinquency. The sad inadequacy of the machinery of theunproelaimed Ordinance prevents me today from making an entirelyappropriate order in this case. In the circumstances in which I amplaced, I think the best I can do in the interests of the accused and thesociety is to make an ox-der under section 325 (2) of the Criminal ProcedureCode in the following terms …
“ I discharge the accused conditionally on his entering into a recogniz-ance with his father' as surety in the sum> of Rs. 25 to> be of good behaviourand to appear in this Court when called upon at any time within threeyears from today. ”
Por the purpose of securing that the accused shall be assisted to leadan honest and industrious life, I further make order under section 326
(c) of the Criminal Procedure Code that the recognizance enteredinto by the accused shall contain the following conditions: —-
that the accused shall throughout the prescribed period of 3 yearsbe placed under the supervision of the Probation Officer forthe time being in charge of the Colombo Probation Unit J ‘
that he shall as soon as arrangements be made for the purposes
reside and receive his education and treatment at the ChildProtection Society Home in Maharagama, or should this-arrangement prove impracticable at any future date at suchother similar Institution as the Probation Officer in charge=of the accused shall select with approval of the Court ;
that he shall attend the Government Child Guidance Clinic im
. Colombo for such treatment as the Officer in Charge of theClinic shall notify the Probation Officer to be necessary anddesirable;
that he shall obey all such orders or directions as may be issued
to him by the Probation Officer for the purpose of securing,his good conduct and welfare. ”
' I further direct that should the Probation Officer at any time consider-that, in the interest of the accused and of society, the present ordershould -be varied or modified in any way he should refer the matter to-this Court for further directions.
It was brought to my notice that there are technical difficulties whichprevent me from making the appropriate order under the ProbationOffender’s’ Ordinance, No. 42 of 1944, the chief difficulty being that,when the present offence was committed, Avissawella had not beenproclaimed, a “ Judicial Division” for the purposes of that Ordinance.Nevertheless, I express the hope that, for all financial purposes, theorder which I make today shall be regarded as a probation, order so as-to permit the expenses involved in maintaining the accused at.Maharagama or in any other Institution will be met from public funds. .
•Accused conditionally released-