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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton.
THE KING v. DIAS SINNO.
D.C. (Crim.), Kalutara, 1,939.
District Court—Punitivejurisdiction—Sentence of fouryean—Robbery—
Previous conviction—Ceylon Penal Code, s. 68, and chapter XII.—Criminal Procedure Code, ss. M, 167 (7), and 192.
Where an accused was convicted of robberyi in the District Court,and there being a previous conviction against him, the DistrictJudge sentenced him to four years' rigorous imprisonment—
Held, that the sentence was beyond the punitive jurisdiction – ofthe District Court, and the sentence was 'accordingly reduced totwo years.
HE accused was convicted of robbery in the District Court, andthe District Judge in view of a previous conviction sentenced
the accused to four years’ rigorous imprisonment.
The accused appealed.
.4. St. V. Jayewardene, for the accused, appellant.
Walter Pereira, K.C., S.~Q., for the Crown.
Cur. adv. vult.
July 1, 1908. Hutchinson C.J.—
This is an appeal against a sentence of four years’ imprisonmentimposed by the District Court. The appellant was convicted ofrobbery, an offence under chapter XII. of the Penal Code; he hadbeen previously convicted of an offence under the same chapter;and the District Court thereupon imposed this sentence, purportingto act under section 68.
In my opinion, section 68 of the Penal Code must be read subjectto the enactment of the later Ordinance, section 14 of the CriminalProcedure Code, which limits the sentence of imprisonment which aDistrict Court can pass to two years; and the sentence imposed bythe District Court should be reduced to two years.
Wood Benton J.—
The appellant was convicted of robbery under section 380 of thePenal Code, in the District Court of Kalutara. He admitted aprevious conviction under the same chapter of the Code (chapterXVII.), and the District Judge, purporting to act under section 68,thereupon sentenced him to four years’ rigorous imprisonment. The
77. N. A 00900 !8/S0)
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only point argued before us on this appeal, which is a reference byGrenier J. under section 52 of the Courts Ordinance, is whethersection 68 of the Penal Code enables a District Judge—to take theconcrete case now under consideration—to impose a sentence ofimprisonment in excess of the ordinary two years’ limit to whichhis jurisdiction is confined by section 14 of the Criminal ProcedureCode. In my opinion, section 68 of the Penal Code enhances theliability of the accused, but it does not enlarge the jurisdiction ofthe District Court. The Solicitor-General, who practically supportedthe appeal, pointed out to us that there are sections in thePenal Code (e.g., section 417) in which the District Court, withoutexceeding its normal jurisdiction, could give effect' to section 68 byimposing double the ordinary maximum punishment (viz., one year’simprisonment of either description). I do not think that we oughtto give to section 68 any wider application. If we do so, the resultwill be that the offence of robbery might be punished in the District .Court by twenty years’ rigorous imprisonment. I would reducethe sentence appealed against in the present case to two years’rigorous imprisonment. The construction of section 68 of .the PenalCode which I suggest that we should adopt, is supported by thedecision of .the Indian Courts under the analogous provision's(section 75) in the Indian Penal Code. See Reg. v. Vithya,l QueenEmpress v. Khalak,2 and cases noted in Eatanlal and Dhirajlal’sLaw oj Crimes (p. 75). I do not agree with Mr. A. Jayewardene,the appellant’s counsel, that section 192 of the Criminal ProcedureCode, which empowers a Magistrate, if, “ after taking the evidenceadduced for the prosecution and the defence, he is of opinion thatthe accused is guilty of an offence which cannot be adequatelypunished by a Police Court, ” .to take steps with a view to committalbefore a higher Court, has any application to the present case. Onthe other hand, I think that we ought not to interpret the incidentallanguage of section 167 (7) of the Criminal Procedure Code, in whichreference is made to proof of a previous conviction increasing thepunishment “ which the Court is competent to award, ” as extendingthe jurisdiction of the District Court beyond its ordinary statutorylimits. Section 6 of Ordinance No. 7 of 1899 shows .that when suchan extension was intended, it was effected in express terms.
1 (1871) Ratanlal's unreported Cases, p. 49.• (1888) I. L. R. II., All. 393.
THE KING v. DIAS SINNO