003-NLR-NLR-V-14-THE-ATTORNEY–GENERAL-v.-SAMARAKOON-et-al.pdf
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[In Revision.]Present: Hutchinson C.J.
Xov.23, 1910
THE ATTORNEY-GENERAL v. SAMARAKOON et aLD. C. (Criminal), Colombo, 2,693.
Revision—Application by Attorney-General fur enhancement of punish-ment—Criminal Procedure Code, ss. 335-33$, 350, and 357.
Where there has been a conviction and lawful sentence in aDistrict Court criminal case, the Attorney-General has no rightto appeal for enhancement of punishment; he ought to move byway of revision.
rT*HE respondents were tried along with several others on anJ- indictment charging them with unlawful assembly, riot,
' arson, and causing hurt to three women in the course of theforcible assertion by the respondents of their claim to a piece of
2 (/W7) f. h. R. to Mud. 105.
* (1VJS) 4 Pal.
1 (1900) 5 Tam. 3X.
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Nov. 23,1010The
Attorney-General v.Samarakoon
land of which the complainants (women) were in possession. Theywere convicted on all the charges, and some of them were sentencedto pay fines amounting to Rs. 700 each, and others to fines of Rs. 100each. None of them appealed. The Attorney-General applied forrevision of the sentences on the ground that this was not a caseproper for a fine, and that a substantial term of imprisonmentought to have been imposed.
Bawa, for the respondents. —The Attorney-General did not appealagainst the sentence, though he had the right to do so. It is notopen to him to move the Supreme Court by way of revision.Counsel referred to Perera v. Silva,' Goonawardaue v. Orrr
Van Langenhcrg, S.-G., for the Attorney-General.—Section 338of the Criminal Procedure Code, which gives a right of appeal,subject to the provisions of sections 335 and 336, to persons dis-satisfied with any judgment or final order, expressly says that theappeal lies for any.error in law or in fact. In this case there is noerror in law or fact which the Attorney-General can appeal against[Hutchinson C.J.—What was the practice hitherto ?] TheAttorney-General has appealed in similar cases, and has also movedthe Supreme Court by way of revision. No objection appears tohave been taken to either procedure. Counsel asked for a rulingon the point.
Cur. adv. vult.
November 23, 1910. Hutchinson C.J —
The Attorney-General applies for revision of the sentences in thiscase. Mr. Bawa, for the persons sentenced takes the preliminaryobjection that the Attorney-General might have appealed againstthe sentences, and that this Court should follow the rule of practice,which has been sometimes suggested or adopted, that where theapplicant for revision had a right of appeal, his application oughtgenerally to be refused.
Mr. van Langenberg contends that where there has been aconviction and a lawful sentence, the Attorney-General has noright of appeal against the sentence. The right of appeal in criminalcases is defined by sections 335 to 338 of the Criminal ProcedureCode. Section 335 sets out certain cases in which there is to beno appeal against a conviction, except on a matter of law ; section336 deals with appeals against acquittals, and section 337 withappeals against a refusal to issue process; and section 338 enactsthat, subject to the last three preceding sections, any person
J {1908) 4 A. a. R. 10.8 {1907) 2 A. C. R. 172.
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dissatisfied with “ any judgment or final order ” of a Magistrate orDistrict Court in a criminal case or matter to which he is a partymay appeal “ against such judgment ” for any error in law or infact. When the Attorney-General, having been a party to thecase, seeks to get this Court to alter the sentence, he cannot allegeany error in law or in fact, and therefore I think that he cannotappeal against the sentence if it was, as this was, a lawful sentence.It is true that, by section 347, at the hearing of an appeal the Courtmay, on an appeal from a conviction, increase or reduce the sentenceor alter the nature of it, with or without altering the verdict ; butthat can only be done in a case where an appeal is allowed bysection 338. 1 have accordingly heard the application.
His Lordship set out the facts, and then continued
There can be no doubt that the conviction was right, and thatthe offence was very grave. Mr. van Langenberg urges that theforcible assertion of a claim to land is a common offence and isdangerous, and leads to breaches of the peace and blood feuds, andthat a sentence of imprisonment without the option of a fine oughtto be imposed as a warning and deterrent. The fines imposed,however, were very substantial for people of the class to which therespondents belong, and I am not sure that such fines are not aseffective as a sentence of imprisonment to deter others from doingthe same thing. And from every point of view a fine is moresatisfactory than imprisonment. There is no reason to supposethat these men are dangerous persons, who ought to be locked upso as to protect society against them, and 1 never think that a Courtin passing sentence should undertake the impossible task of decidingwhat a man “ deserves ”. These sentences do not appear to me tobe inadequate or otherwise improper and I will make no order.
Nov. 23,1010
Hutchinson
C.J.
The
Attorney-General v.Samarakoon
Application refused.