025-NLR-NLR-V-75-THEVARAJAH-Appellant-and-N.-K.-NATHAN-O.-I.-C.-Chunnakam-Respondent.pdf
H. N. G. FERNANDO, C.J.—Thevarajah v. Nathan
169
1971 Present: H. N. 6. Fernando, C. J., and Thamotheram, J.
THEVARAJAH, Appellant, and N. K. NATHAN (O.I.C., Chunnakam)
Respondent
8. C. 816f7J—M. C. Chavakachcheri, 27651
Probation oj Offenders Ordinance—Section 12—Probation order—Breach oj condition»—Requirement of proof.
When a Probation Officer reports to Court that an offender has violated theconditions of the probation order, the offender must bo given an opportunity,before any sentence or order is passed, of defending himself against theallegation made by the Probation Officer.
A.PPEAL from an order of the Magistrate’s Court, Chavakachcheri.
S. Sharvanania, for the accused-appellant.
N.J. VUcassim, Crown Counsel, for the Attorney-General.
November 19, 1971. H. N. G. Fernando, C.J.—
The appellant was convicted on his own plea on 19th March 1971 ofan offence of theft. Thereafter the Magistrate made a ProbationaryOrder in respect of the appellant. On 6th July 1971 the Probation Officerhied a motion stating that the appellant had violated the conditionsin the bond. Thereupon the Magistrate issued a warrant for his arrest.When the appellant was brought before Court on 30th August 1971,the Magistrate took no proceedings but immediately made an orderin which he mentions that the Probation Officer states that the offenderhas violated the conditions on which he was placed. Upon that material,the Magistrate cancelled the former probation order and sentenced theappellant to detention in a certified school. The learned Magistrate hasunfortunately misunderstood the provisions of Section 12 of the Probationof Offenders Ordinance. The Magistrate is empowered by sub-section (1)to act upon a report of a Probation Officer for the purpose of summoningan offender or of issuing a warrant to secure his attendance in Court.But once the offender is brought before Court, the power to deal withhim for an alleged breach of conditions of a probation order is conferredby sub-section (6). According to that sub-section, the probation ordermay be cancelled and a sentence imposed on the offender, only if it isproved to the satisfaction of the Court that he has contravened theconditions of the probation order. A pi ere report from a Probation Officercannot constitute proof of any misconduct on the part of an offender,who must be given an opportunity of defending himself against theallegation of a breach of the conditions of the probation order.
17-Volume LXXV '
170
Anandakumarastcamy v. Thiagarajah
The order dated 30.8.71 is set aside and the case is remitted to theMagistrate to take further proceedings according to law. The Officer inCharge of the Fernham School, Atchuvely, is directed to release theappellant forthwith. The Probation Order made by the Magistrate on3rd April 1971 will remain in force unless and until it is cancelled by theMagistrate after further proceedings. The appellant will report to theMagistrate on 3rd January, 1972.
Thamothebam, J.—I agree.
Case sent back for further proceedings.