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SAXTON v. ANDI ct at.
P. 0., Matale, 9,860.
Appealable order—Criminal Procedure Code, ss. 414, 426—Order made byPolice Court under Ordinance No. 6 of 1891—Appeal to enhance punish-ment—Power of Supreme Court to enhance in appeal sentence passed.
Per Withers, J.—No appeal lies from an order of the Police Courtto have a greater punishment inflicted than the Magistrate has passed.And the Supreme Court has no power in appeal to enhance suchpunishment.
rpHE facts connected with this appeal are set forth in thejudgment of the Supreme Court.
Tempter, A. S.-G., for appellant.
28th November, 1895. Withers, J.—
In this case the Magistrate has convicted two persons, one of theoffence of giving false evidence under section 180 of theCeylon Penal Code, and the other of aiding and abetting him inthat offence.
No previous conviction having been proved against either ofthe accused, the Magistrate thought it a proper case to deal withunder the provisions of the Ordinance No. 6 of 1891, and instead ofsentencing either of the accused at once to punishment, he hasdirected them to be released on their entering into a recognizanceto appear and receive sentence when called upon at any timeduring the period of six months, and in the meantime to keep thepeace and be of good behaviour.
The prosecutor has appealed from the order of the Magistrateon the ground that the judicial discretion has not been properlyexercised.
Mr. Templer, Acting Solicitor-General, who appeared to supportthe appeal, thought it proper to ask for my opinion, whetherthis is an appealable order. The object of the appeal is to have thesentence enhanced, and the question is, whether any one canappeal from an order of the Police Court to have a greaterpunishment inflicted than the Magistrate has thought proper toimpose.
My present opinion is that such an appeal does not lie. The414th section of the Criminal Procedure Code no doubt uses wordswhich might be construed to include the alteration of a lessersentence to a longer one. But that is not the view which I am atpresent prepared to take of it. I think I have said before, and
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1895. Bitting alone I am prepared to repeat it, that if the Legislature hadNovember 28. intended that this Court should have jurisdiction to pass a greaterWithebs, J. sentence than that passed in the Court below, that power wouldhave been given in the clearest possible terms. The Indian Codeof 1872, section 280, used these words :—“ The Appeal Court, after“ perusing the proceedings of the lower Court, and after hearing the
“appellantmay alter or reverse the finding and sentence
“ or order of such Court, and may, if it see reason to do so, enhance“ any punishment that has been awarded.”
There the power is given in clear and express terms, and suchterms I find wanting in our Procedure Code.
I must not omit to take notice of section 426 of the CriminalProcedure Code, which enacts that the Supreme Court in revisionmay call for a case for the purpose of satisfying itself as to thelegality or propriety of any sentence or order passed thereon, butthe Supreme Court in revision may only pass such sentence or orderwhich it might have made had the case been brought before it indue course of appeal instead of by way of revision.
Hence, if I brought this order up in revision, I do not see how Ican interfere with the sentence so as to enhance it, even if I thoughtfit to do so, on which I offer no opinion. For these reasonsI dismiss the appeal.
SAXTON v. ANDI et al