077-NLR-NLR-V-11-SINGER-MANUFACTURING-CO.-v.-PAUL-PERERA.pdf
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Present: Mr. Justice Wendt and Mr. Justice Wood Benton.SINGER MANUFACTURING CO. v. PAUL PERERA.
P. C., Hatton, 6,379.
Appeals incriminalcases—Petition ofappeal signed by proctorwithout
proxy—Validity—Criminal ProcedureCode,ss.887,388,387,
338, 840 (I), 441.
Where the complainant in a Police Court case -appealed with thesanctionof theAttorney-General from an acquittal oftheaccused
on certain counts, and the petition of appeal was signed only bythe proctor whoappeared for thecomplainant in thePoliceCourt,
but who held no proxy from the complainant authorizing him tosign such petition of appeal,—
Held (over-ruling the objection tothehearing oftheappeal),
that the petition of appeal waa inorder,andthat theappellant
was entitled to be heard.
WhndtJ.—Noproxy is requiredin a criminal case,andDistrict
Court proctors are qualified to signpetitionsofappealincriminal
A
PPEAL from an acquittal with the sanction of the Attorney-General. The petition of appeal was signed by the Proctor
only, who held no prosy authorizing him to do so.
Counsel for the accused-respondent objected to the hearing of theappeal on the ground that the appeal was not properly before theCourt, as the proctor had no authority to appeal.
Wendt J. reserved the question for consideration by .two Judges.
H. J. G. Pereira, for the complainant, appellant.
A. St. V. Jayewardene, for the accused, respondent.
Cur- adv. vidt.
October 13, 1908. Wendt J.—
The question reserved by me for the consideration of a Bench oftwo Judges was whether the petition of appeal of the complainant,being signed only by Mr. Liesching, a proctor of this Court, asproctor for the petitioner, was regular. While section 287 entitlesevery person accused before a Criminal Court to be defended by a“ pleader,” no similar right is conferred upon a complainant. Inpractice, however, complainants are often represented by a proctor,or an advocate instructed by a proctor. Subject to certain conditionsas to amount of sentence and otherwise contained in sections 335,336, 337, the right of appeal to the Supreme Court is given by
1908.
October 13.
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October 13. section 338 to any person dissatisfied with any judgment or final^ order pronounced by any Police Court or District Court in a criminal' case or matter to which he is a party. Section 336 enacts .that thereshall be no appeal from an acquittal, except at the instance or withthe written sanction of the Attorney-General. Section 340 (1)directs that every petition of appeal shall be signed by the appellantor his proctor. The present is an appeal sanctioned by the Attorney-General against the acquittal of the accused on the chargeof criminal breach of) trust in respect of two sums of Bs. 20 and Bs. 5paid to him by one Tillekeratne. The appeal of the accused againsthis conviction on another charge tried at the same time has alreadybeen disposed of.
In objecting to the complainant’s appeal, counsel for the accusedcited The Queen v. Genis Appu,1 in which Bonser C-J., in sendingback for .the signature of the accused-appellant a petition of appealsigned only by a proctor, is reported to have said that as an accusedwas liable to have his punishment enhanced in appeal, the petitionshould have been signed by the accused, or else it should appearon the record that the proctor was specially authorized to sign it.From the later remarks of the learned Judge it would appear thathe considered that the authority should be contained in a writtenproxy. The report does not state whether the proctor had appearedfor the accused at the trial. On July 3, 1900, .the day followingthe order in that case, the Begistrar of this Court, apparentlyacting, on the order of the Chief Justice, issued to all .the Magistratesand District Judges the following circular: —
“ I am directed to invite your attention to section 340 (1) of theCriminal Procedure Code, which provides that .every petition ofappeal shall be signed by the appellant or his proctor.
“ Cases have recently come under the notice of the Supreme Courtwhere the petition was not signed by the appellant himself, butmerely purported to be drawn by a proctor of the District Court.
“ Such a petition of appeal is altogether irregular, and should notbe accepted and forwarded to the Supreme Court.
“ I am to request you to reject in future every petition of appealpreferred to this Court which is not either signed by the accusedhimself, or by a proctor of the Supreme Court expressly authorizedby the appellant to sign a petition of appeal on his behalf. Theproxy giving this authority to the proctor should be filed with therecord and transmitted to this Court.”
At the argument we were given to understand that the Circularhad not been uniformly acted upon, although in some instancesproxies had been sent up with petitions of appeal. It will be noticedthat the Circular says nothing about appeals by complainants, andthe reason mentioned by Bonser C-J- in his order, viz., the liability
i (1900) 1 Browne 59.
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to enhance punishment, does not apply to such appeals. In PodiSinno v. Punchi Sinno1 Lawrie J. expressed himself as follows: —“ I am doubtful of the propriety of requiring a proctor for accused-appellants to file a proxy. I think proctors are entitled.to appearin Criminal Courts on verbal or informal written retainers, and maysign petitions of appeal, and that proxies are necessary only underthe Civil Procedure Code. If a proctor appear for an accused in acriminal case, and says he is a proctor, and signs his name as proctor,•I am prepared to accept his statement as true, having confidencethat proctors, who have been admitted and have sworn to do theirduty, will not mislead the Court.
Mr. Jayewardene, for the accused, sought to argue that thecircular might be regarded as a rule prescribing a form, and madeunder section 441 of the Criminal Procedure Code, but that argumentfails for lack of proof that two Judges concurred in making it.In my opinion the circular cannot be given effect to. Proxies havenever been required in criminal cases. The Legislature when enact-ing the new Criminal Procedure Code, with knowledge of this fact,refrain from making proxies obligatory. When, therefore,
• section 340 speaks of the appellant’s proctor, we must take it tomean the person who at the time of the passing of the Code wouldhave been regarded as his proctor. When a proctor has appearedfor a party, and been recognized as such in the Court below, I thinkhe should be regarded as authorized to file in that Court a petitionof appeal on behalf of his client. By analogy with the practice inthe Civil Courts, I think it makes no difference that the proctor isa proctor of the District Court and not a proctor of the SupremeCourt. My learned brother and I have thought it proper to consultthe Chief Justice, and we are authorized to say that he concurs inholding that the complainant’s appeal is in order, that no proxyis required in a criminal case, and that District Court proctors arequalified to sign petitions of appeal.
Wooo Renton J.—
I think that the appeal in this case must be received as in order.The dictum of Bonser C.J. in 1 Browne 59, in my opinion, is notdefensible under the law as it stands. The circular of July 3, 1900,is not a “ rule ” within the meaning of section 441 of the CriminalProcedure Code, and is of no legal force or authority.
Preliminary objection over-ruled.
ms.
October IS.Wendt J.
23-
1 (1901) 2 Browne 62.