024-NLR-NLR-V-41-SOLICITOR—GENERAL-v.-ALWIS.pdf
HE ARNE J.—Solicitor-General v. Alvois.
101
1939Present: Hearn e J.
SOLICITOR-GENERAL v. ALWIS[In Revision.]
M. C. Colombo, 38,390.
Sentence—Application for enhancement—Discretion of Magistrate regardingsentence—Revision by Supreme Court—Application of Criminal Pro-cedure Code, s. 325 (Cap. 16).
On an application for enhancement of a sentence passed by a Magistratethe Supreme Court will interfere only when the sentence passed ismanifestly inadequate and not merely on the ground that it would itselfhave passed a heavier sentence.
It will not interfere with the discretion of a Magistrate unless it appearsthat it was improperly exercised.
Where it is proposed to apply section 325 of the Criminal ProcedureCode regard must be had to considerations personal to the accused, thenature and the circumstances of his crime.
T
HIS was an application by the Solicitor-General to enhance thesentence passed on the accused—
Jansze, C.C., in support.
Colvin R. de Silva (with him M. M. Kumarakulasingham), for theaccused, respondent.
Cur. adv. vult.
November 22, 1939. Hearne J.—
The first accused and the second accused, the former of whom is herethe respondent, were convicted of cheating Mr. A. A. Raymond bydishonestly inducing him to deliver property valued at Rs. 216.84 and ofusing as genuine a document known to be forged.
The first accused was dealt with under the provision of section 325 ofthe Criminal Procedure Code. He was bound over in a sum of Rs. 250to be of good behaviour for a period of one year and to come up forjudgment when called upon.
The Solicitor-General has moved this Court to pass a sentence ofimprisonment on the respondent. The Magistrate acted under section325 (2) of the Code instead of section 325 (1), but this technicality wouldnot lead me to accede to the application if it otherwise appears to be aninappropriate one.
No cases have been brought to my notice indicating the principle uponwhich this Court has acted in dealing with similar applications. It has,however, been held that on an application for enhancement of sentence are visional Court will interfere only when the sentence passed was mani-festly inadequate and not merely on the ground that it would itself havepassed a heavier sentence. Analogously this Court would not interferewith the discretion vested in a Magistrate by law if it would itself nothave exercised the discretion but only if it appears that it was improperlyexercised.
The only argument addressed to me was that the order of the Magistratewas not sufficiently deterrent, not of further, similar, criminal activitieson the part of the respondent but on the part of other members ofthe public.
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Rabbia. Umma v. Noordeen.
If this argument were sound it could be urged in almost every case inwhich a Magistrate decides to use his discretion, certainly in every casewhere, but for the provisions of section 325, a Magistrate would be obligedto pass a sentence of imprisonment.
I have consulted Indian decisions on the corresponding section of theCriminal Code of India, and the principle I extract from those decisionsis that the Magistrate is required to look at the matter primarily in thginterests of the accused.
Having regard to the object of the section this appears to be onlycommon sense. The benefit of the section should not be indiscriminatelyapplied, but when it is proposed to be applied regard must be had toconsiderations, if I may put it in this way, personal to the accused. As Iread the section it does not mean that it is essential that the accused mustbe young, or the offence must be trivial, it merely indicates the lines onwhich the discretion of a Court is to be exercised, and those lines, it isimportant to note, relate to the accused and the circumstances and natureof his crime.
In the present case the Magistrate addressed his mind to the youth ofthe respondent, to the fact that he is a first offender, and he took the viewthat his partner in crime, a reconvicted criminal much older than he, hadprobably persuaded him to participate in an undertaking which the formerhad planned.
I am not prepared to say the exercise by the Magistrate of his discretionwas so improper that interference by this Court is desirable. I
I dismiss the application.
Application refused.