032-NLR-NLR-V-49-THE-ATTORNEY-GENERAL-Petitioner-and-DHARMASENA-Respondent.pdf
DIAS J.—The Attorney-General ®. Dharmasena.
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1948Present : Dias J.
THE ATTORNEY-GENERAL, Petitioner, and DHARMASENA,
Respondent.
S. C. 592—In revision M. C. Gampaha, 41,483.
Personation—Parliamentary elections—Triable summarily—Section 152 (3), CriminalProcedure Code—Parliamentary Elections Order in Council, sections 54 and 58.The offence of personation created by section 58 (1) (a) of the Ceylon Parlia-mentary Elections Order in Council, 1946, may be tried summarily by a Magis-trate under the provisions of section 152 (3) of the Criminal Procedure Code.
-A.PPUCATTON to revise an order of the Magistrate of Gampaha.
V. T. Thamotheram, C.C., for the Attorney-General.
S. Walpita, for the accused, respondent.
Our. adv. vult.
January 19, 1948. Dias J.—
The accused, Subasinghe Arachchige Dharmasena, was charged undersection 58 of the Ceylon (Parliamentary Elections) Order in Council1946, with having, on August 28,1947, being the day fixed for the electionof a member for the House of Representatives to represent the electoraldistrict of Miiigama, applied for a ballot paper in the name of WalpolaKankanamalage Chandradasa.
Section 54 of the Order in Council provides that every person whoat an election applies for a ballot paper in the name of some other person,whether that name be that of a person living or dead or of a fictitiousperson …. shall be guilty of the offence of “personation”.
Section 58 (1) (a) of the Order in Council provides the punishmentfor the offence of “personation” by declaring it to be a “ corruptpractice ” and by enacting that every person who commits the offenceof “ personation ” shall on conviction by a District Court be liable to afine not less than Rs. 250 and not exceeding Rs. 1,000, or to rigorousimprisonment for a term not exceeding tweleve months, or to both suchfine and such imprisonment.
The accused on being charged pleaded “ Guilty ”, and the Magistratehaving assumed jurisdiction under section 152 (3) of the criminalProcedure Code sentenced him to pay a fine of Rs. 100.
The Attorney-General moves for the revision of the proceedings onthe grounds (a) that an offence under section 58 of the Order in Council
111940) 41 N. L. R. 468.
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DIAS J.—The Attorney-General v. Dharmasena.
should not be dealt with under the summary procedure provided bysection 152 (3), and (b) that, in any event, the sentence is illegal, becausethe minimum fine provided for the offence of “ personation ” is Rs. 250.
It is clear that the offences created by section 58 of the Order in Councilare non-summary. The words “ shall on conviction by a District Court ”clearly imply that.
Section 152 (3) of the Criminal Procedure Code, however, providesthat where the offence appears to be one triable by a District Courtand not summarily by a Magistrate’s Court, and the Magistrate, beingalso a District Judge having jurisdiction to try the offence, is of opinionthat such offence may properly be tried summarily, he may try thesame summarily following the procedure laid down by Chapter XVIII.,and in that case, he shall have jurisdiction to impose any sentencewhich a District Court may lawfully impose.
A Divisional Bench in Madar Lebbe v. Kiribanda1 laid down that aMagistrate when he invokes the powers in section 152 (3) acts as aMagistrate and not as a District Judge, although he has power to imposea sentence which a District Judge can impose. There are variousdecisions of the Supreme Court which declare that, while some offencesmay properly be dealt with summarily under section 152 (3), there areother offences which should not be so dealt with.
I can see no reason why an offence under section 58 of the Order inCouncil may not be tried summarily under section 152 (3) of the CriminalProcedure Code. It was suggested that where a Magistrate undersection 152 (3) summarily convicts a person of the offence of “per-sonation ”, the disabilities created by section 58 (2) may not ensue.
I do not agree. What section 58 (2) says is that “ every person who isconvicted of a corrupt practice shall, by conviction, become incapablefor a period of seven years of thedate of his conviction of being registeredas an elector, or of voting at any election under this Order, or of beingelected or appointed as a Senator or Member of parliament”. Wherea person has been lawfully convicted of a corrupt practice by a DistrictJudge on an indictment, or by a Magistrate wielding powers lawfullyunder section 152 (3), that person is one “ who is convicted of a corruptpractice”. That being so, the legal disabilities follow as a necessaryconsequence. The first submission of the Attorney-General, therefore,fails.
The second submission of the Attorney-General must be upheld.The law provides a minimum fine. Had the Magistrate taken the troubleto consult the Order in Council, he would have seen that a fine of Rs. 100for the offence of personation is quite illegal. I would go further. Ido not think this is a case which can adequately be punished by a merefine at all. Offences of personation are hard to detect and difficult toprove. When such an offender has been brought to book, it is expedientin the public interest that the punishment should St the crime.
I quash the order imposing the fine, and I direct that the accused■shall undergo a term of rigorous imprisonment for four months. Subjectto this the.conviction is affirmed.
Sentence varied.
i (1915) 18 N. L. R. 376.