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Present: Maartensz A.J.
REX v. MARTHELIS PERERA.
62—D. C. (Crim.) Colombo, 7,535.
Criminal Procedure—Conviction set aside—No notice to accused—
Criminal Procedure Code, ss. 307 and 357.
Where the conviction of an accused by a Police Court was setaside by the Supreme Court in revision without notice being servedon him,—
Held, that the terms of section 357 of the Criminal ProcedureCode were imperative and that an order under that section to theprejudice of the accused, without notice, was ineffective.
PPEAL from a conviction by the District Judge of Colombo*The accused was summarily tried and convicted under
section 316 of the Penal Code and sentenced to three months’simple imprisonment. On December 19, 1924, the Solicitor-General moved the Supreme Court in revision to enhance thesentence. On February 6, 1925, the Supreme Court set asidethe conviction and sent the case back directing that non-summaryproceedings be taken against the accused. It appeared that theaccused had received no notice of the Solicitor-General's application.When non-summary proceedings were taken against the accused
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and the case came on for trial objection was taken on his behalf th&the could not' be tried again for the offence for which he had beencharged and convicted. The learned District Judge overruledthe objection, whereupon the accused pleaded guilty and wassentenced to three months’ simple imprisonment.
Drieberg, K.G. (with B. F. de Silva), for appellant..
J. E. M. Obeyesekere, C.C., for respondent.
August 26, 1925. Maabtensz A.J.—
The accused in this case was summarily tried and convictedunder section 316 of the Penal Code for causing grievous hurtto one Kariawasamage Peter, and on November 29, 1924, hewas sentenced to three months’ simple imprisonment. On De-cember 19, 1924, the Solicitor-General moved the Supreme Courtin revision to enhance the sentence passed on the accused or tomake such order as to it shall ueem meet. Notice on the accusedwas ordered for January 23, 1925. On February 6, 1925, orderwas made setting aside all the proceedings in the case and directingthat non-summary proceedings be taken with a view to the casabeing committed for trial before a higher Court. This order wasmade on the assumption that the accused had received noticeof the Solicitor-General’s application. Non-summary proceedingswere taken and the case came on for trial before the District Court-on May 4, when the objection was taken that the accused couldnot be tried again for an offence of which he had been chargedand convicted. The learned District Judge overruled the objection.Thereupon the accused pleaded guilty and was sentenced to threemonths’ simple imprisonment. The District Judge .in passingsentence took into consideration the fact that he had already,served the full term of three months imposed by the Police Court.The accused appeals from the order of the District Judge. It isTcontended that on the day non-summary proceedings commencedthe accused had practically served his term of imprisonment,and that on the date of trial he had, in fact, served that term ofimprisonment. The return to the notice shows that the accusedwas not served with the notice of the Solicitor-General’s application.It is contended that the order made by the Supreme Court onFebruary 6 is ineffective, as section 357 (2) of the Criminal ProcedureCode enacts that no order under that section shall be made to theprejudice of the accused, unless he has had an opportunity of beingheard either personally or by advocate in his own defence. Section357 vests this Court with power to revise proceedings of the Courts
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of original jurisdiction. I allowed Crown Counsel an opportunityof meeting this objection, as I understood when the case was arguedyesterday that he was not aware that the order of February 6had been made without notice to the accused. Crown Counselinforms me to-day that he is not prepared, in view of the factthat the accused had no notice, to support the order of theDistrict Court sentencing the accused to three months* simpleimprisonment. I am of opinion that the terms of section 357 (2)are imperative and that an order made under that section withoutnotice to the accused is ineffective, and that at the date the accusedpleaded to the indictment before the District Court the convictionand sentence by the Police Court had not been set aside. I am,thereforeM>f opinion that this is a case to which section 330 applies,and that*he conviction and sentence of the accused not havingbeen set aside by the Supreme Court his plea that he could not betried again should have been upheld.
I accordingly set aside the sentence of three months’ imprison-ment and discharge the accused.
REX v. MARTHELIS PERERA