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Present: Jayewardene A.J.
410—P. 0. Matara, 28fill-
Punishment—Plea of not guilty—Accused not to be punished more severelybecause he claimed to be tried.
An accused, who pleads not guilty and claims to be tried, is notto be punished when found guilty more severely on that account,than a co-accused who has pleaded guilty.
Where an appeal lies on a matter of law only, the certificatethat the matter of law is a fit question for adjudication shouldrefer specifically to the point of law certified.
rJ^HE facts are set out in the judgment.
No appearance.
August 22, 1923. Jayewardene A.J.—
In this case the appellant has been convicted under the GamingOrdinance and sentenced to pay a fine of Rs. 6. He appeals on apoint of law : That the Police Magistrate who fined his co-accusedwho pleaded guilty Rs. 3 was not justified in fining him Rs. 6because he pleaded not guilty and claimed to be tried. After thepetition of appeal raising this point was filed, the learned Magistrategave his reasons for the conviction and sentence, and dealing withthe objection he says :—
“ Counsel for the defence, however, questions my right to imposevarying sentences in the case of the same offence. Myonly answer to that is that it is a practice universallyfollowed, and I think, very rightly followed for a judge toregard a frank and open plea of guilt (when not madeboastfully) as a justification for treating the accused withsomewhat less severity. A man who aggravates hisoriginal offence by putting forward a vexatious andfrivolous defence cannot, I think, claim as a right from theCourt the same sentence as has been imposed on those whoadmitted their guilt.”
There is a great deal of truth and force in what the Magistratesays, but the practice is one which has often been condemned, and,if I may say so, rightly condemned by this Court. It holds out astrong temptation to innocent persons to plead guilty. Thus inSeyatuwa v. Apputm1 five people were charged with unlawful> um) 2 N. L. R. 222.
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gaming, the first three accused pleaded guilty and were fined Rs. 5each. The fourth and fifth accused pleaded not guilty and claimedto be tried. After trial, the Magistrate found them guilty andsentenced them to one month’s rigorous imprisonment. Bonser
J. reduced the sentences of imprisonment to fines of Rs. 6. Hesaid:—
“ If a sentence of Rs. 5 was considered sufficient punishment forthe other men, it appears to me from the evidence that itis equally sufficient for the appellants. It would seem asif the Magistrate punished the appellants more severelybecause they claimed to be tried. I reduce the sentenceto a fine of Rs. 5. A man ought not to be in a worseposition because he claims to be tried.”
In another gambling case (Bdliate v Don Lewis1) Wendt J.made the following observation :—
“ Again it is not an offence to plead not guilty when one is reallyguilty, and a person doing so cannot be punished moreheavily than one who fully admits the charge or vice versa.’9
If the conviction of the accused is to be sustained, the fine shouldbe reduced to Rs. 3.
I should like to draw attention to the way in which the point oflaw was certified by the proctor for the appellant. As this was acase in which the accused had been sentenced to a fine not exceedingRs. 25, and no leave of the Court had been obtained, no appealwould lie except on a matter of law. When the appeal is on amatter of law, the petition must contain a statement of the matterof law and must bear a certificate by an advocate or proctor thatsuch matter of law is a fit question for adjudication by the SupremeCourt (section 340 (2) of the Criminal Procedure Code). Thepetition of appeal in this case contains seven grounds marked (a) to(g)t and the matter of law is raised in paragraph (a). All the othersraise questions of fact. The certificate of the proctor does not referspecifically to ground (a), but certifies generally “ that the abovematters of law stated in this petition are fit and proper for theconsideration of the Honourable the Supreme Court.” Such acertificate is, in my opinion, not regular. The certificate shouldrefer specifically to the ground which embodies the point of lawraised. This is, I think, clear from the form of the petitionof appeal given in^the Criminal Procedure Code, see Schedule HI.,Form 12. That gives the form of the certificate to be attached tothe petition of appeal thus: “ I certify that the matter of lawstated in ground of appeal is a fit question for adjudication by theSupreme Court.”
The grounds of appeal must be numbered consecutively andthe form requires the number of the ground (or the letter of the1 (1907) 1 Aserwatham’s Hep. p. 2.
Jatbwab-DENE A. J.
The PoliceOfficer,■tnlra, v.Bahan
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Jayewar-dene A.J.
The PoliceOfficer,Dondra, v.Bohan
alphabet attached to it) should be referred to in the certificate.The certificate in question refers to “ matters of law/* and I had tosend the case back for the proctor to state what the paragraphswere which contained the matters of law certified. If the practiceindicated by the Code is followed, it would lead to more certaintyand less delay in dealing with such appeals.
But there is a ground on which, I think, the conviction of theaccused should be set aside altogether. The accused was chargedwith unlawful gaming under section 4 of the Gaming Ordinance,1889, and the prosecution had to prove that the accused playeda game for a stake “ (a) in or upon any path, street, road, or place towhich the public have access, whether as of right or no; or (6)(not material) ; or (c) in or at a common gaming place ….See section 3 (2) of the Ordinance. There is, however, I regret tofind, not a word of evidence that this accused and the otheraccused played a game for a stake, or that they did so in any ofthe places referred to in section 3 (2) of the Ordinance. The chargeagainst the accused which is contained in the summons was thatthey “ did on the 4th day of May, 1923, at Menikkalawatta…. commit unlawful gaming by playing with cards for
stakes a game called “ Bebi.” The only witness for the prosecutionwas the police officer of Dondra West who said : “On May 4these two people (that is, the appellant and the 3rd accused whohad also pleaded not guilty) were among the people I found gamb-ling in the jungle.” He was cross examined, but his replies werenot material. This evidence does not prove that the accusedcommitted “ unlawful gaming ” within the meaning of section 4of the Ordinance. It proves absolutely nothing. The chargestated that the unlawful gaming took place in Menikkalawatta,but the witness says that it took place in the jungle. Is thejungle a part of Menikkalawatta, and if so, private property ?It is not a path, street, or road. Is it a place to which the publichave access whether as of right or not ? There is not a word ofevidence on this point. It is not suggested that it is a commongaming place. The witness also does not say that the gamblingwas for a stake. These are of the very essence of the offence ofunlawful gaming, but there has been a total failure to prove them.In the circumstances it is impossible to maintain the convictionof the appellant, and I set it aside. In revision, I also set aside theconviction of the 3rd accused who pleaded not guilty and has beenconvicted on the same evidence.
Set aside.