139-NLR-NLR-V-17-THE-KING-v.-BARONCHI.pdf
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[Full Bench.]
1014. Present ; Wood Renton A.C.J., Pereira J., and .De Sampayo A.J.
THE KING v. BARONCHI
127—-D. C. (Grim.) Tang alia, 809.
Appeal—Criminal Procedure Codet s. 335—Accused sentenced to threemonths' imprisonment and to a term of police supervision—Adcusedhas right to appeal—Punishment—Penal Codet s. 62.
The word 11 punishment ’’ as used in section 335 (1) of the CriminalProcedure Code does not mean a punishment mentioned in section52 of the Penal Code.
An accused sentenced by a District Court to a term of threemonths' imprisonment and to a term of police supervision hasa right to appeal on the facts without leave of the District .Tudge.
T
HIS case was referred to a Full Bench by Pereira J. for thedecision of a preliminary objection to the appeal raised by
counsel for respondent.
van Langenbergf K.C., S.-G., for the respondent.—T^e accusedwas sentenced to three months imprisonment and one year's policesupervision. No appeal lies against* a sentence of three months’imprisonment, except on a point of law or with the leave of theCourt. The sentence directing the accused to be under policesupervision does not enable the accused to appeal on the factswithout leave. “ Police supervision " is not a punishment withinthe meaning o£ the term as U6ed in the Criminal Procedure Code.The term “ punishment ” is used in .the Criminal Procedure Code inthe sense in which that term is used in the Penal Code. Policesupervision is not “ punishment ” in the sense in which that term
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is used in the Penal Code. Council cited Gulantaivalu. v. Soma- 1914.Sundaram,1 Cassim v. Kandappa,3 Daniel v. Elans,3 Dissanayake The Kingv. Fernando,* Fernando v. Mathes Pulle.3«. Baroneh
Bartholomeusz, for accused, appellant, not called upon.
Our. adv. vult.
September 8, 1914. Wood Renton A.C.J.—
This case has been reserved by my brother Pereira for argumentbefore three Judges on a preliminary objection to the hearing of theappeal taken by the Solicitor-General. The accused was charged,under section 450 of the Penal Code, with having been found in abuilding for an unlawful purpose. The District Judge convictedhim, and sentenced him to three months' rigorous imprisonmentand one year’s police supervision. Under section 335 (1) of theCriminal Procedure Code no appeal lies on the facts without theleave of the Court, which has not been given here, from a sentenceto a term of imprisonment not exceeding three months, “ withoutany other punishment.” The question that we have to decide iswhether the addition in the present case, to the term of imprison-ment of a term of police supervision, is a “ punishment ” within themeaning of section 335 (1) of the Criminal Procedure Code.
Apart from authority, I should answer this question, withouthesitation, in the affirmative. Police supervision, as we all know,is in. point of fact a punishment. It effects a material curtailmentof the personal liberty of the offender on whom it is imposed, andsubjects him to treatment which is distinctly penal in its character.Moreover, the Habitual Criminals and Licensed Convicts Ordinance,1899 (No. 7 of 1899), itself describes police supervision as a punish-ment. The difficulty, however, which has rendered the argument ofthis case before three Judges necessary, arises from the view expressedby the Full Court—although no decision of the point was necessary—in Culantaiavalu v. Somasundram, 1 approving of the decision ofBonser C.J. in Cassim v. Kandappa3 that binding over a partyto keep the peace is not a “ punishment ” within the meaning ofthe Criminal Procedure Code. The reasoning that underlies thosecases may be stated as follows. There is no definition of the term” punishment ” in the Criminal Procedure Code itself. But section3 (1) of the Code provides that " all words and expressions usedherein and defined in the Penal Code and not hereinbefore definedshall be deemed to have the meanings respectively attributed tothem by that Code.” Now, while the Criminal Procedure Code-does not, the Penal Code, it is said, does, define “ punishment.”Section 52 enumerates the punishments to which the offenders are
1 (1904) 2 Bal. 122.»2 Br. 191.
* (1901) 5 N. L. B. 311.* 6 N.L. B. 144.
* (1909) 12 N. L. B. 159.
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1914.
Wood
Bbntok
A.C.J.
The Kingv. Baronohi
liable under the provisions of the Code, and neither an order binding,a person over to keep the peace or an order for police supervisioncomes * within .the category. It appears to me, however that theanswer to this argument is a very simple one. Section 52 merelyprescribes the punishments to which an offender is liable under theCode itself. It nowhere prevents the Legislature from creating byindependent enactment new forms of punishment within the mean-ing of section 335 (1) of the Criminal Procedure Code. OrdinanceNo. 7 of 1899 is, in my opinion, an independent enactment of thatcharacter.
I would over-rule the preliminary objection, and allow the caseto be argued on the merits before a single Judge.
De Sampayo A.J.—
I entirely agree, and have nothing to add.
Peiieira J.—
I agree. “ Punishment ” in the ordinary acceptation of theterm is some loss or pain indicted for a crime or fault, and I see noreason why thatv meaning should not be given to the term as usedin section 335 (1) (d) of the Criminal Procedure Code, unless, of course,the term is given a special interpretation in that Code or the PenalCode. In Cassim v. Kandappa 1 it appears to have been assumedby some oversight that the word was defined in the Penal Code.There is no definition of the word in the Penal Code. The particularpunishments to which offenders are liable under the Code arementioned therein (section 52), and thereafter, wherever it isnecessary to refer to them, they are referred to by the specific namesgiven to them. The terms in which the punishments referred toabove are set forth in the Penal Code, namely, “ the punishmentsto which offenders are liable under the provisions of this Code are,”Ac., imply by themselves the assumption that there are’ otherpunishments recognized by law.
Objection over-ruled. 1
1 (1901) 5 N. L. R. 311.