DALTON S.P.J.—Sourjah v. Hendrick.
1936Present: Dalton S.P.J.
SOURJAH v. HENDRICK.362—P. C. Galle, 10,821.
Stamp—Appeal by public servant—Petition of appeal requires to be stamped—Criminal Procedure Code, s. 340 (3).
A petition of appeal filed by a public servant in a criminal case mustbe stamped in accordance with section 340 (3) of the Criminal ProcedureCode.
^^PPEAL from an acquittal by the Police Magistrate of Galle.
M. F. S. Pulle, C.C., for complainant, appellant.
L. A. Rajapakse (with him J. R. Jayawardene), for accused, respondent.
Cur. adv. vult.
August 3,1936. Dalton S.P.J.—
This is an appeal by the complainant, an Inspector of Police, Galle,against the acquittal of the accused, with the written sanction of theAttorney-General.
The accused was charged, with abetting an offence, by Mr. H.Wijenathan, Municipal Engineer, Colombo, by asking him to accept,or offering to him, an illegal gratification of Rs. 100, or half of twomonths’ salary, in the event of the accused being appointed to a postas Sub-Inspector in the Works Department of the Colombo Municipality,for which post he was an applicant. The offence abetted is stated to bea con ravention of section 158 of the Penal Code, punishable by section
1 L. 11. 5 Ch. D. 979.
DALTON S.P.J.—Sourjah v. Hendrick.
109 of the same Code. The charge is most crudely and carelessly irawtdtbut no objection was raised on that ground and the accused no tdoiibtfully understood the charge.
The accused pleaded not guilty. Four witnesses were mentioned insupport of the prosecution in the complaint, but after hearing the firstand principal witness, Mr. Wijenathan, who was not cross-examined,the Magistrate of his own motion held that the letter (P2) from theaccused which was produced did not amount to the offer of a bribe. Hetherefore heard no further evidence and acquitted the accused.
The Magistrate was clearly wrong in so holding, and Counsel for therespondent (accused) has to admit he cannot support the acquittal onthe ground given by the Magistrate. The evidence of Mr. Wijenathanclearly establishes the offer of an illegal gratification, as set out in thecharge.
When the appeal first came before me, a preliminary objection wastaken thereto on behalf of the respondent, on the ground that thepetition of appeal was not stamped, as required by section 340 (3) of theCriminal Procedure Code. It is conceded that the appellant is a publicservant employed by the Government of Ceylon, but it was argued byMr. Rajapakse that there, is no exception in the Ordinance to therequirement of stamping all petitions of appeal.
Crown Counsel for the appellant, in reply to the objection, arguedthat he had never heard of a petition of appeal by a Government servantas such being stamped, but I pointed out that there was no exceptionat all in the Ordinance, although section 337 (2) expressly refers toappeals by the Attorney-General. Counsel could refer me to no otherprovision of the law making any exception in his case. The provisionfor a Rs. 5 stamp on a petition of appeal would seem, from the terms ofsection 340, sub-sections (3), (4) and (5), to be a method designed for thepurpose of putting some small check on a person launching a frivolousor worthless appeal, which check would apply equally to Governmentservants as to all others. The former might find, in certain circum-stances, that he had to pay the fee himself and not out of public funds.
Mr. Pulle then asked me to deal with the matter in revision, arguingthat the appellant had done nothing that had not been consistently donein similar previous appeals, and, I gave him an opportunity of producingevidence to support his contention that, according to the past practicerecognized by the Court, no petition such as this had previously beenrequired to be stamped. The respondent was also allowed to fileaffidavits, if he wished to do so.
The matter then came before me again and Crown Counsel supportedhis application with an affidavit from the Registrar of this Court. Inthat affidavit Mr. Grenier sets out that since the year 1915, when hefirst acted as Deputy Registrar and up to date no stamps have beenaffixed to petitions of appeal by public servants in the employment ofthe Government of Ceylon under section 340 (3) to his knowledge, withone exception. He states further that the practice has been that if anappellant, not being a public servant employed by the Government ofCeylon, has not stamped his petition, the record is sent back to thePolice Magistrate, or District Judge, from whom it is received, and he is
SOURJAH v. HENDRICK