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Feb. 28, 1911
Present: Lascelles C.J. ; Middleton and Grenier JJ.TAYLOR v. HENRTE
55—P. C. Kurunegala, 9,144.
Attempt to sed'uce—Punishment—Ordinance No. 11 of 1865, a. 19—PenalCode, a. 289.
Section 19 of Ordinance No. 11 of 18C5 provides no punishmentfor an attempt to seduce a labourer. The offence is punishableunder section 289 of the Penal Code with a fine.
HE question of punishment in this case was referred byMiddleton J. to a Bench of two Judges. Lascelles C.J. and
Middleton 3., before whom it was argued on February 27, 1911,referred it to a Full Bench.
Sampayo, K.C. (with him H. J. C. Pereira and Sansoni), forthe accused, appellant.—Section 19 ofOrdinanceNo.il of 1865 doesnot provide any punishment for the offence of attempting to seduce.The section declares that any person seducing or attempting toseduce a labourer shall be guilty of an offence, and goes on toenact : “ shall be liable on conviction to a fine not exceeding£5 in respect of each of the servants, &c., so seduced, and to
imprisonment if the Court shall see fit to impose such
It is clear that the sentence of imprisonment could not be imposedexcept where a sentence of fine has been imposed ; a sentence offine can be imposed only where the accused is guilty of seduction.As section 19 does not provide a penalty for attempt, we mustlook to section 289 of the Penal Code, which provides only a fine.
To interpret the section as imposing a sentence of imprisonmentfor an attempt to seduce will be unreasonable. The Legislaturecould not have intended to punish an attempt more severely thanthe offence itself.
Elliott, for the complainant, respondent.—The law often treatsthe actual commission of the offence and the attempt on a par.
Where actual seduction has been committed, the law imposes afine at the rate of £5 per person seduced ; in the case of attempt itprovides imprisonment only as a penalty, as it is impossible to sayhow many persons have been attempted to be seduced.
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It is only when there is a clear case* of omission to provide for apenally that section 289 of the Penal Code should be applied.Section 289 has never been applied to this section since 1865.
Sampayo, K.C., in reply, referred to section 490, Penal Code, andto Grenier's Reports (1872), Part I., p. 36.
Cur. adv. vult.
February 28, 1911. Lascelles C.J.—
In this appeal a question of some difficulty is raised with regardto the construction of section 19 of Ordinance No. 11 of 1865,which is the principal Ordinance regulating the rights and duties ofservants and labourers. In the case now under appeal the accusedwas convicted of wilfully and knowingly attempting to . seducecertain labourers from the service in which they were employed,and he was sentenced to imprisonment for three months and to afine of Rs. 100. On appeal, the difficulty to which I shall now referwas brought to light. The section is to the following effect. Thefirst part of the section is clear enough. It provides that any personwho shall wilfully and knowingly seduce or attempt to seduce fromhis service or employment any servant or journeyman artificer, orwho shall do any other of the enumerated acts of the same kind,shall be guilty of an offence ; and then the section goes on, “ and beliable on conviction thereof to a fine not exceeding £5 in respect ofeach of the servants or journeymen artificers whom he shall have soseduced, taken, or harboured, or concealed, or retained as aforesaid,and to imprisonment with or without hard labour for any periodnot exceeding three months.” It will be observed that in thepenal portion of the section there is no provision for the offenceof attempting to seduce a labourer or servant from his employment.The only fine authorized is a fine not exceeding £5 in respect of eachof the servants or journeymen artificers whom he shall have soseduced, taken, or harboured, or concealed. It has been suggestedthat, although the section provides no fine for the offence for attempt-ing to seduce, the persons who are guilty of this offence are never-theless liable to imprisonment. After a careful examination of thesection I am unable to adopt that view. In the first place, thatreading of the section is not in accordance with the plain andgrammatical meaning of the section. The words “ and to imprison-ment ” obviously relate to the same class of offence as that for whichthe fine of £5 relates, viz., the class of offences in which the seductionor a similar offence has been actually committed ;*and in the secondplace, it is hardly possible to imagine that it was the intention ofthe Legislature that, while the actual offence was punishable byeither a fine or imprisonment, the attempted offence should bepunishable only by imprisonment. The result is that the section
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Feb. 28, 1911
is defective in so far as it provides no penalty for the offence ofattempting, any of the prohibited actions. In some cases, wherethere has been an accidental omission in an enactment, it is com*petent for the Court to give effect to the obvious intention of theLegislature by the introduction of the necessary words. But inpenal cases the language of the enactment must be strictly construed.The utmost that we are able to do is to read the words of the enact-ment in the most favourable sense to secure the obvious intentionof the Legislature, and if, for example, a word has two meanings, it.is competent for the Court to adopt the meaning which is mostfavourable to the object of the Ordinance. In Maxwell on theInterpretation of Statutes there is a number of cases cited that areclosely analogous to that now in question. I need hardly refer tothese, but the result is that we are strictly bound by the terms of thesection, and the section must be construed as it stands. It declaresan attempt to seduce a servant or labourer to be an offence, but itdoes not provide any penalty for the offence. The only course opento us is to have recourse to section 289 of the Penal Code, whichallows a fine to be imposed for an offence for which no penalty isprovided, and we think, in the circumstances of this case, that apenalty of Rs. 100 is a fair and just punishment to impose. Wehold that the sentence of the Magistrate must be set aside, and afine of Rs. 100 under section 289 of the Penal Code be imposed.We think it unnecessary to make any order as to the costs ofthe appeal.
I agree, and have only a few words to add, to say that since I gavemy decision on the application of Mr. de Sampayo to reconsiderthis case with regard to the punishment, I have very carefully goneinto the reading of the section, and I find it impossible to read theterms of the section other than in the way in which it has beenconstrued by the Chief Justice. I think that the grammaticalwording is such that we must say that the imprisonment therementioned was intended to be inflicted in respect of each of theservants or journeymen artificers who had been seduced, taken, orharboured. That being so, it seems to me that there is a completecasus omissus here, which is not within the province of this Court tosupply. I agree, therefore, that the section must be read in theway enunciated by my Lord, and the sentence should be reduced toa fine of Rs. 100.
I agree with the rest of the Court, and nave nothing to add.
TAYLOR v. HENRIE