027-NLR-NLR-V-43-THIEDEMAN-v.-GEORGE.pdf
KEUNEMAN J.— Thiedeman v. George.Present: Keuneman J.
115
1941
THIEDEMAN v. GEORGE.521—M. C. Colombo, 22,003.
Personation—State Council election—Offence, a cognizable one under (StateCouncil Elections) Order in Council—Penal Code, s. 169r.
Section 169f of the Penal Code is not repealed in regard to StateCouncil Elections by section 51 of the (State Council Elections) Orderin Council, 1931, as amended in 1934 and 1935, which makes persona-tion a cognizable offence.
^^PPEAL. from a conviction by the Magistrate of Colombo.
J. E. M. Obeyesekere (with him M. M. I. Kariapper), for accused,appellant.
W. R. Weerasuriya, C.C., for complainant, respondent.
Cur. adv. vult.
October 2, 1941. Keuneman J.—
The accused in this case was charged with applying at an electionheld under the Ceylon Order in Council, 1931 (State Council Elections)for a ballot paper in the name of another person, viz., registered voterNo. 5092, Irasingham Karthigesar, and thereby committing the offenceof personation under section 169f of the Penal Code (Chapter 15). Theaccused was convicted, and fined Rs. 100, and now appeals.
In appeal, the point has been emphasized that the alleged personationtook place at a State Council Election, and it was urged that under theCeylon (State Council Elections) Order in Council of 1931, as amended in1934 and 1935, personation is made a cognizable offence (see section 51),and that any one who commits the offence of personation is guilty of acorrupt practice, and is liable on conviction by a District Court in. thediscretion of the Court to a fine of Rs. 500, or to imprisonment of eitherdescription for a period not exceeding six months or to both such fine andimprisonment. Further, by conviction such person becomes incapablefor seven years from the date of his conviction of being registered as avoter, of voting at any election, or of being elected as a member, and ifat that date he has been elected as a member, his election is vacatedfrom the date of the conviction. Further, a prosecution cannot beinstituted for a corrupt practice without the sanction of the Attorney-General. (See section 55.)
It is now contended that the conviction is bad on two grounds (a) thatthe prosecution was before a Magistrate, and not before a District Judge,and (b) that no sanction has been obtained from the Attorney-General.
For the Crown it was urged that the charge was brought under section169f of the Penal Code, and that an offence under that section is properlytriable in the Magistrate’s Court and that no sanction from the Attorney-General is needed before prosecution.
Counsel for the appellant argued that section- 169f of the Penal Codemust be regarded as superseded and repealed, sp far as it relates to StateCouncil Elections, by the enactment of sections 51 and 55 of the Order in
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KEUNEMAN J.—Thiedeman v. George.
Council. He relies on Michell v. Brown'. There Lord Campbell C.J.said, “ If a later statute again describes an offence created by a formerstatute, and affixes a different punishment to it, varying the procedure,&c., giving an appeal where there was no appeal before, we think theprosecutor must proceed for the offence under the later statute. If thelater statute expressly altered the quality of the offence, as by makingit a misdemeanour instead of a felony or a felony instead of a misdemean-our, the offence could not be proceeded for under the earlier statute :and the same consequence seems to follow from altering the procedureand the punishment. The later enactment operates by way of substi-tution, and not cumulatively giving an option to the prosecutor or theMagistrate ”.
This was followed in Whitehead v. Smithers where it was furtherheld that the whole frame of the later Act showed an intention to repealthe earlier Act. See also Fortescue v. The Vestry of St. Matthew, BethalGreen '.
Counsel for the respondent argued that in Ceylon we are governed bysection 9 of the Interpretation Ordinance (Chapter 2). Section 9 runs asfollows : —
“ Where any act or omission contitutes an offence under two ormore laws, whether either or any of such laws comes into force before orafter the commencement of this Ordinance, the offender shall, unlessthe contrary intention appears, be liable to be prosecuted andpunished under either or any of those laws, but shall not be liable to bepunished twice for the same offence. ”
It is to be noted that a very similar provision exists under section 33 ofthe Interpretation Act, 1889 (Chapter 63).
It appears that, prima facie, it is open to the Crown to prosecute undereither of the laws in force relating to personation, but the accused cannotbe punished twice for the same offence.
I have examined the language of the Order in Council. Section 51, whichmakes personation in a State Council election a cognizable offence,Which it was not under section 169f, of the Penal Code, does not appearto me to suggest that that latter section was intended to be repealed.It may on the contrary be a strengthening of that section. Certainlyunder section 55, on the footing that personation is a corrupt practicethe fine can be greater and even imprisonment can be imposed, andjurisdiction to try a corrupt practice is vested in the District Judge,and the prior sanction of the Attorney-General is required. I also wishto emphasize in section 55 the loss of civil rights which results on a■ conviction for a corrupt practice. This last matter in particular leads meto the view that what was intended was not the repeal of section 169fof the Penal Code, but the provision of an alternative procedure, wherebypersonation at a State Council election could be treated with greaterseverity, and would result in the loss of civil rights. But the Legislatureadded certain safeguards in the case of such a prosecution, by removingthe trial to the District .Court, and by requiring the sanction of the
1 Ellis db Ellis 267, 120 E. R. 909.* L. R. 1S76, 77, 2 C. P. 553.
3 L. R. 1891, 2 Q. B. 170.
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The Attorney-General v. Vithilingam.
Attorney-General to the prosecution. I think the intention was to makean addition to the existing law, and not to treat the whole subject de novo(see Maxwell on the Interpretation of Statutes (7th Edition), page 160).
I accordingly come to the conclusion that section 169f of the PenalCode is not repealed by necessary implication. It is clearly not repealedexpressly.
There is one further consideration which I may mention. In Chapter 1of the Revised Edition of the Legislative Enactments, the Commissionerin the preparation of the revised edition, is empowered under section 3 (1)
to omit “ any legislative enactment which has been repealed, expresslyor specifically or by necessary implication ….”. But wherethe Commissioner not only failed to omit, but specifically included arepealed enactment, it has been held that after the requirements ofsection 10 (1) and (2) were complied with, the repealed Ordinance becamepart and parcel of the Statute Law of the Island ; see Rex. v. Fernando That was a case where the enactment in question had previously beenrepealed expressly, and where there was no authority on the part of theCommissioner to reintroduce it. I am inclined to think, that similarconsiderations would apply, where an Enactment impliedly repealed isre-enacted but in view of the opinion I have expressed on the otheraspects of the case, I do not decide that precise point.
The appeal is dismissed.
Affirmed.