Attorney-General v. Sinnathamby.
1948 Present : Wijeyewardene A.C.J., Jayetileke S.P.J., and
THE ATTORNEY-GENERAL, Petitioner, and SINNATHAMBY
et al., Respondents.
Applications fob Revision in (a) M. C. Chavakaohcheri 25,641 (59),(6) M. C. Chavakaohcheri 25,727 (70), (c) M. C. Chavakaohcheri25,673 (71), (d) M. C. Chavakaohcheri 25,507 (110), (e) M. C.Chavakaohcheri 25,371a (148), (/) M. C. Point Pedro 10,093a (87).
Personation-—Parliamentary elections—Not triable summarily—Criminal ProcedureCode, ss. 10, 11, 152 (3)—Ceylon (Parliamentary Elections) Order in Council,s. 58 (1) (a).
The offence of personation punishable under section 58 (1) (a) of the Ceylon(Parliamentary Elections) Order in Council, 1946, cannot be tried summarilyby a Magistrate under the provisions of section 152 (3) of the Criminal ProcedureCode.
The Attorney-General v. Dharmasena (1948) 49 N. L. R. 95, not followed.
A PPLICATIONS in revision reserved by Howard C.J. for thedecision of two or more Judges in the following terms :—
“ The same points are involved in all these appeals which are.instituted by the Attorney-General in revision. The respondentin each of these cases was charged with personation, an offencepunishable under section 58 (1) of the Ceylon (Parliamentary Elections)Order in Council, 1946. At each trial the accused pleaded guilty.Thereupon the Magistrate made the following order ‘ Police does notpress for punishment. I sentence accused to imprisonment till 2 p.m. ’The Attorney-General maintains that the sentence is totally inadequatebecause:—
(а)Personation is a serious offence and is treated as such by section
58 (1) of the Ceylon (Parliamentary Elections) Order in Councilwhich provides for a higher punishment for personation thanfor other corrupt practices referred to in the same section ;
(б)The sentence imposed by the Magistrate is hardly likely to act as
a deterrent to other would-be impersonators. I
I am in these circumstances asked to enhance the sentence passed inthese cases by the Magistrate.
“ I agree with Mr. Fernando that personation is a very seriousoffence and that the sentences passed by the Magistrate are not onlyinadequate, but farcical. The fact that the Police does not press forpunishment is irrelevant. It has, however, been contended byMr. Kumarakulasingham on behalf of the various respondents that theAttorney-General cannot, ask the Court to enhance these sentencesby way of revision. The insufficiency of punishment was an error oflaw inasmuc) as a minimum punishment has been prescribed and hasnot been imposed, therefore the Attorney-General should have
Attorney-General v. Sinnathamby.
appealed. In this connection I have been referred to the case ofThe Attorney-General v. Kunchihamby1 the headnote of which is asfollows :—
‘ Insufficiency of punishment is an error in law when a minimumamount of penalty has been prescribed and has not beenimposed. The proper remedy of the prosecutor in such acase is by way of appeal under section 338 of the CriminalProcedure Code.
‘ The Supreme Court, when considering whether it should exerciseits powers of revision under section 357 of the CriminalProcedure Code, would regard with disapproval delay on thepart of the petitioner.’
“ Section 58 (1) provides that every person on conviction by aDistrict Court of personation shall be liable to a fine of not less thantwo hundred and fifty rupees and not exceeding one thousand rupeesor 'to rigorous imprisonment for a term not exceeding twelve months.Mr. Knmarakulasingham therefore maintains that the Magistrate,when he ordered the respondents to be imprisoned till 2 f.m., imposedan illegal sentence. Mr. Fernando, however, has invited my attentionto the amendments effected to section 15 of the Criminal ProcedureCode (Cap. 16) by section 2 of the Criminal Procedure Code (Amend-ment) Ordinance, No. 47 of 1938, Section 2 of this amending Ordinanceintroduces a new sub-section 15b which is worded as follows :—
‘ Any Court may, in any circumstances in which it is empoweredby any written or other law to sentence an offender toimprisonment, whether in default of payment of a fine or not,in lieu of imposing a sentence of imprisonment order that the •offender be detained in the precincts of the Court until suchhour on the day on which the order is made, not being laterthan 8 f.m., as the Court may specify in the order.’
“ Section 15 • (1) (a) of the Criminal Procedure Code refers to‘ Imprisonment of either description ’. In my opinion the words‘ sentence of imprisonment ’ in section 15b would include a sentence ofrigorous imprisonment. In these circumstances I am of opinion thatthe sentence imposed by the Magistrate was not ah error in law andhence the case of the Attorney-General v. Kunchihamby (supra) does notapply and I am at liberty to hear the application of the Attorney-General by way of revision.
“ Section 58 (1) of the Order in Council refers to conviction by theDistrict Court; so, clearly, that Court is the only Court entitled toexercise jurisdiction unless jurisdiction is imposed on anotherCourt by some other provision of the law. The Magistrate haspurported to exercise jurisdiction as Additional District Judge undersection 152 (3) of the Criminal Procedure Code. This provision isworded as follows :—
‘ Where the offence appears to be one triable by a District Courtand not summarily by a Magistrate’s Court and theMagistrate being also a District Judge having jurisdiction1 (1945) 46 N. L. R. 401.
Attorney-General v. Sinnathamby.
to try the offence is of opinion that such offence mayproperly be tried summarily, he may try the same summarilyfollowing the procedure laid down in Chapter XVHI, and inthat case he shall have jurisdiction to impose any sentencewhich a District Court may lawfully impose.’
This provision must be read with sections 10 and 11 of the CriminalProcedure Code. Section 10 deals with offences under the Penal Codeand is worded as follows :—
‘ Subject to the other provisions of this Code any offence under thePenal Code may be tried by the Supreme Court or by anyother Court by which such offence is shown in the eighthcolumn of the second schedule to be triable.’
Section 11 deals with offences under other laws and is worded asfollows :—
‘ Any offence under any law other than the Penal Code shall whenany court is mentioned in that behalf in such law be triedby such court. When no court is mentioned it may be triedby the Supreme Court or by any other court mentioned in thesecond schedule : Provided that—
No District Court shall try any such offence which is
punishable with imprisonment for a term which mayexceed two years or with a fine which may exceedone thousand rupees ; and
Except as hereinafter provided no Magistrate’s Court shall
try any such offence which is punishable with imprison-ment for a term which may exceed six months orwith a fine which may exceed one hundred rupees.’
“It will be observed that in section 11 the words ‘subject to theother provisions of this Code ’ are omitted. From the absence of thesewords which occur in section 10 Mr. Fernando argues that section152 (3) of the Criminal Procedure Code has no application and hencethe Magistrate could not try the case as Additional District Judge.Mr. Fernando has in this connection referred me to Sohoni’s Code ofCriminal Procedure in India. The Indian sections corresponding tosections 10 and 11 of our Code are sections 28 and 29 respectively.Section 29 was amended by Act XII of 1923 by the insertion of thewords 1 subject to the other provisions of this Code ’. On the otherhand it has beer) held recently by Dias J. in The Attorney-General v.Dharmasena1 that the offence of peisonation created by section 58 (1) (a)of the Ceylon (Parliamentary Elections) Order in Council, 1946, maybe tried summarily by a Magistrate under the provisions of section152 (3) of the Criminal Procedure Code. This decision seems toconflict with the decision in Jayasekera v. Dissanayake 2. In Attorney-General v. Dharmasena (supra), Dias J. at page 96 also held that wherea person has been lawfully convicted by a Magistrate wielding powersunder section 152 (3) that person is one “ who is convicted of a corrupt1 (1948) 49 N. L. R. 95.* (1911) 14 N. L. R. 408.
388WIJEYEWARDENE A.C.J.—AUomey-Qeneral v. Sinnathamby.
practice ” and the legal disabilities follow as a necessary consequence.In my opinion the word * convicted ’ in sub-section (2) of section 68 ofthe Order in Council refers back to the words ' Conviction by a DistrictCourt ’ in sub-section (1). The proposition formulated by the learnedJudge seems to me of doubtful validity. In these circumstances, havingregard to the decision in the Attorney-General v. Dharmasena (supra),I am of opinion that the question arising for adjudication is a questionof doubt and I reserve it under section 48 of the Courts Ordinancefor the decision of two or more Judges of this Court.”
T. S. Fernando, Crown Counsel, with A. C. AUes, Crown Counsel,for the Crown in Applications Nos. 59, 70, 71, 87, 110, and 148.
M. M. Kumar akulasingham, with S. Thevaratnam, for the accused-respondents in Applications Nos. 59, 70, 71, 110, and 148.
iS. Svbramaniam, for the accused-respondent in Application No. 87.
Cur. adv. vult.
July 2, 1948. Wijeyewakdene A.C.J.—
These applications come before us on a reference made by His Lordshipthe Chief Justice under section 48 of the Courts Ordinance in view of thedecision in The Attorney-General v. Dharmasena. 1
The question that has been reserved for our decision is whether aMagistrate who is also a District Judge could avail himself of thejurisdiction conferred on him by section 152 (3) of the Criminal ProcedureCode and try summarily a person charged with the offence of personationcreated by section 58 (1) (a) of the Ceylon (Parliamentary Elections)Order in Council. That section enacts that any person who commitssuch an offence of personation “ shall be guilty of a corrupt practice, and
shall on conviction by a District Court be liable to a fine
not less than Rs. 250 and not exceeding Rs. 1,000 or to rigorous imprison-ment for a term not exceeding twelve months or to both such fine andsuch imprisonment ”.
In order to ascertain the scope of section 152 (3) of the CriminalProcedure Code it is necessary to examine sections 10 and 11 of the Code,as it is these sections which indicate the appropriate Court or Courts oftrial when a person is charged with an offence. Section 10 deals withoffences under the Penal Code and Section 11 with other offences.
Section 10 enacts :—
“ Subject to the other provisions of this Code any offence under thePenal Code may be tried by the Supreme Court or by any other Courtby which such offence is shown in the eighth column of the FirstSchedule to be triable ”.
It is the presence of the words “ subject to the other provisions of theCode ” in Section 10 that prevents a conflict between that section andSection 152 (3) and thus enables the Magistrates to act under the lattersection in the case of offences under the Penal Code which are triableby a District Court.
(1948) 49 N. L. R. 95.
The King v. Piyaetna.389
Section 11 enacts in unqualified and imperative terms :—
“ Any offence under any law other than the Penal Code shall, whenany Court is mentioned in that behalf in such law, be tried by suchCourt.”
It will be noted that that part of Section 11 does not contain the words,“ subject to the other provisions of the Code ” occurring in Section 10 orthe words “ except as hereinafter provided ” occurring in the proviso (b)to Section 11 which deals with offences punishable under a law other thanthe Penal Code, when the law is silent about the Court of trial.
Now, as mentioned earlier, Section 58 (1) (a) of the Ceylon (Parliament-ary Elections) Order-in-Council refers to a conviction by a District Court,and, therefore, the Court competent to try an accused under that sectionwill only be a District Court according to the provisions of that part ofSection 11 of the Criminal Procedure Code cited by me. An accusedwho is tried under Section 152 (3) of the Criminal Procedure Code is triedby the Judge as a Magistrate and not as a District Judge, though thesection gives the Judge the punitive powers of a District Judge (videRatnayake et al. v. The Inspector of Police, Moratuwa 1).
I am, therefore, of opinion that the accused in these cases could nothave been tried by the Magistrates under Section 152 (3) of the CriminalProcedure Code.
I would quash the convictions and remit the cases for non-summaryproceedings to be taken.
Jayetu/rekB S.P.J.—I agree.
Nagaxjngam J.—I agree.