011-NLR-NLR-V-43-SABARATNAM-v.-PETER.pdf
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Sabaratnam v. Peter.
1941Present: Soertsz J.
SABARATNAM v. PETER.
In the Matter of a Case stated under Section 353 of theCriminal Procedure Code
M.C. Mannar, No. 7 (Madhu Camp).
Autrefois convict—Conviction under ss. 2 and 3 of the host Property Ordinance—Charge against accused of theft of same property—Accused not entitled toraise plea.
Where the accused who had been charged and convicted under sections2 and 3 of the Lost Property Ordinance was charged with theft of thesame property or in the alternative with retaining that property knowingor having reason to believe that it was stolen property,—
Held, that he was not entitled to raise the plea of autrefois convict.
T
HIS was a case stated for the opinion of the Supreme Court undersection 353 of the Criminal Procedure Code.
H. W. R. Weerasooriya, C.C., as amicus curiae.
Cur. aEv. vult.
SOERTSZ J.—Sabaratnam v. Peter.
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August 8, 1941. Soertsz J.—
This is a case stated under section 353 of the Criminal Procedure Codefor the consideration by this Court of the question of law whether anaccused person who had been charged and convicted of an offence undersections 2 and 3 of the Lost Property Ordinance (Cap. 63) can successfullyset up that conviction by way of a plea of autrefois convict when he ischarged with theft of the same property or, in the alternative, with)retaining that property knowing or having reason to believe that it isstolen property.
The material facts are these : —The accused was found in possession ofa part of a gold chain in suspicious circumstances. At that time' there;was nothing to show that it was stolen property, and the accused wascharged, apparently in view of some statement made by him, withretaining lost property. He pleaded guilty and was fined one rupee.That was on June 23, 1941. Later, it came to the notice of the authoritiesthat a woman named Masillamany had been robbed of a part of her goldchain in Madhu Camp on the -night of June 20, 1941. The robber wasnot identified. On June 26, 1941, this woman was produced before theMagistrate by the District Revenue Officer and she made her complaint.The case was put off for further inquiry on July 4, but on June 27 th^accused was produced before the Magistrate. Further evidence wasrecorded, and the accused was charged with robbery in respect of thischain or, in the alternative, with retaining it knowing or having reason tobelieve that it was stolen. After trial, the Magistrate convicted theaccused on the alternative charge, and on a previous conviction being;proved against him, sentenced him to a term of three months’ rigorousimprisonment, and stated the case now before me.
I have no doubt whatever that this conviction is good. Section 330 (1)of the Criminal Procedure Code enacts that—
“ A person who has once been tried by a Court of competent juris-diction for an offence and convicted or acquitted of such offence shall,while such conviction or acquittal remains in force, not be liable to betried again for the same offence nor on the same facts for any otheroffence for which a different charge from the one made against himmight have been made—under section 181 or for which he might havebeen convicted under section 182. ”
In this case, the accused is not charged with the same offence of whichhe. had been convicted and the first part of section 330 has, therefore, noapplication. In regard to the second part, the accused is not beingcharged on the same facts with the present offences. He is being chargedwith these offences on facts which came to light after his earlier conviction.“ Facts ” must mean “ matters within one’s knowledge. In the EvidenceAct, ‘ fact ’ -is said to mean and include (a) anything, state of things orrelation of things capable of being perceived by the senses ; (b) anymental condition of which any person is concious ”.
At the time of the earlier charge and conviction the prosecuting officerwas not conscious of any robbery or theft that had been committed inrespect of this chain, and there were no reasonable grounds upon whichhe could have acted under section 181 and have framed charges of theft
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WIJEYEWARDENE J.—Lenorahamy v. Abraham.
or retaining stolen property. Nor was this a case in which on the evidencebefore him the Magistrate in the earlier case could have said in terms ofsection 182 that offences such as he was here charged with had beencommitted. The observation of Garvin J. in Weerasinghe v. Wijeysinghe'throws some light on this matter.
Grown Counsel invited my attention to the fact that a confession allegedto have been made by the accused to a Ratemahatmaya was proved inthis case. The Magistrate admitted this evidence on the ground thatalthough this Ratemahatmaya was an inquirer into crimes he did notexercise power within the area in which he happened to be when theconfession was made. This, 1 fear, is too nice a distinction. But, quiteapart from this confession, there is the presumption under section 114 (a)of the Evidence^ Act as well as other evidence on which I think, theconviction is justified.
The conviction and sentence, therefore, stand.
Affirmed.