141-NLR-NLR-V-50-RICHARD-COSTA-Appellant-and-A.-S.-P.-C.-I.-D.-COLOMBO.-Respondent.pdf
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Richard Costa v. A. S. P. {O.IJ3.), Colombo
1948Present: Nagalingam J.
RICHARD COSTA, Appellant, and A. S. P. (C.I.D.), COLOMBO.Respondent8. C. 590—M. C. Colombo, 40,335
Criminal Procedure Code, section 17—Conviction for distinct offences—Consecutive sentences—Provision in Penal Code, section 67—Conflictof provision in statutes—When section 17 of the Criminal ProcedureCode applies.
The provisions of section 17 of the Criminal Procedure Code applywhere the distinct offences of which the accused is found guilty aresuch that the acts which constitute one or more of those offences incombination do not constitute the other offence or offences. In thelatter event the provisions of section 67 of the Penal Code would apply.
NAGALENTGAM J.-—Rickard Costa-v. A. S. f. (C.I.D.), Colombo
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.^^.PPEAL from a judgment of the Magistrate, Colombo.
H. W. Jayewardene, for the accused appellant.
It. A. Kannangara, Groton Counsel, for the Attorney-General.
Cur. adv. wit.
July 23, 1948. Naoaldtoam J.—
I see no reason to interfere with the conviction of the appellant in thiscase as the evidence irresistibly and conclusively establishes his guilt.
It has been contended that the sentence imposed by the learnedMagistrate upon the appellant is an illegal one. The prisoner wasconvicted upon three, separate charges, the first being that he was amember of an unlawful assembly the common object of which was tocommit housebreaking by night and robbery, the second that he wasarmed with a deadly weapon or weapons while being a member of the saidunlawful assembly and the third that he had in his possession withoutlawful excuse instruments of housebreaking and offensive weapons.In respect of each of these offences the appellant was sentenced to a termof 6 months’ rigorous imprisonment; the sentences in regard to the firstand second offences were to be consecutive while the sentence in regard tothe third offence was to be concurrent with the sentence on the first. Thecontention advanced on behalf of the appellant is that the order directingthat the sentences on the first and second charges should run consecutivelyis contrary to law.
The foundation for this contention is section 67 of the Penal Code which,infer alia, provides that where several acts of which one or more than onewould by itself or themselves constitute when combined a different offencethe offender shall not be punished with a more severe punishment than theCourt which tries him could award for any one of such offences. The secondcount which charges the appellant with having been armed with deadly wea-pons while being a member of an unlawful assembly, an offence punishableunder section 141 of the Penal Code, is an offence constituted by a com-bination of the acts which constitute the offence of unlawful assembly, thesubject of the first charge, and of the offence of being found having in hispossession instruments of housebreaking, an offence punishable undersection 449 of the Code, the subject of the third charge. The appellant,therefore, should not be punished with a more severe punishment thanthat which the Magistrate could have awarded for any one of such offences’,namely, a term of 6 months’ rigorous imprisonment.
But it is pointed out by learned Crown Counsel that the learned Magis-trate acted under section 17 of the Criminal Procedure Code which providesthat where a person is convicted at one trial of any two or more distinctoffences the Court may sentence him for such offences to the severalpunishments prescribed therefor which such Court is competent to inflict,and that such punishments when consisting of imprisonment shouldcommence to run one after the expiration of the other in such order as theCourt may direct, unless, of course, the Court orders them or any of them
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KAGALINGAM J.—Richard Costa v. A. S. P. (O.I.D.), Colombo
to run concurrently. This section further provides that where the caseis tried by a District Court or Magistrate’s Court the aggregate punishmentshall not exceed twice the amount of punishment which such Court in theexercise of its ordinary jurisdiction is competent to inflict. It is there-fore urged tfyat in pursuance of the provisions of this section of theCriminal Procedure Code it was competent for the Magistrate to imposeseparate punishments in respect of the three distinct offences of which theaccused has been found guilty and to direct that the terms of imprisonmentshould in respect of two of them run consecutively.
There can be little doubt that each of the three offences of which theaccused has been found guilty is a distinct offence and that the appellantWas rightly sentenced to separate terms of imprisonment in respect ofeach of them ; there can be equally little doubt that the Magistrate hadjurisdiction under this section to direct that the sentences in respect oftwo or more offences should run consecutively. But the Court cannotgive effect solely to section 17 of the Criminal Procedure Code and ignorethe provisions of section 67 of the Penal Code. There is an apparentconflict between these two provisions of our penal statutes. The conflictshould, if possible, be harmonised and the two provisions read in such amanner as to give effect to both provisions without any conflict resultingtherefrom. This object can be achieved, to my mind, by excluding fromthe operation of section 17 of the Criminal Procedure Code those caseswhich would fall within the ambit of section 67 of the Penal Code. Readin this way the two sections are perfectly complementary and lead tono conflict. The position, therefore, is that, where the distinct offences ofwhich the accused person is found guilty are such that the acts-whichconstitute one or more of those offences in combination do not constitutethe other offence or offences, the provisions of section 17 of the CriminalProcedure Code would be applicable, but not otherwise; and in the latterevent the provisions of section 67 of the Penal Code would govern that case.The appellant’s case falls in this view of the matter under section 67 of thePenal Code, and he should not have had his sentences directed to runconsecutively in respect of the first and second charges of which he wasconvicted.
The order of the learned Magistrate directing that the sentences of im-prisonment on the first and second counts to run consecutively is thereforeset aside and the sentences on these two counts will also run concurrently.The appellant, in the result, will suffer rigorous imprisonment for a termof six months in all.
The 1st, 2nd, 3rd, 5th, and 6th prisoners in this case have not appealed.The punishment imposed on the 5th prisoner is in accordance with law andneeds no interference in revision ; but in regard to the 1st, 2nd, 3rd and 6thprisoners, for the reasons given above, I would, acting in revision, directthat their sentences too in regard to the first and second counts should runconcurrently and not consecutively, and the sentences of imprisonmentimposed on these prisoners will be modified to this'extent only.
Sentence varied.
PRINTED AT TUB OETLOX GOVERNMENT PRESS, COLOMBO.