UPUL DE SILVA v. ATTORNEY-GENERAL

032-SLLR-SLLR-1999-V-2-UPUL-DE-SILVA-v.-ATTORNEY-GENERAL.pdf


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UPUL DE SILVA
v.ATTORNEY-GENERAL
SUPREME COURTG. P. S. DE SILVA, CJ.,
PERERA, J. ANDWEERASEKERA, J.
S.C. APPEAL NO. 4/99COURT OF APPEAL NO. 182/95HIGH COURT NEGOMBO NO. 07/94MAY 27. 1999.
Appeal – Power of the Court of Appeal on appeal from a conviction – Order forretrial – Scope of section 335 (2) (a) of the Code of Criminal Procedure Act.
The appellant was indicted with the offence of criminal breach of trust (section391 of the Penal Code) and the offence of using a forged document as genuine(section 459 read with section 454). After trial, the High Court Judge acquittedthe appellant on both charges but convicted him of criminal misappropriation andimposed a sentence of twelve months rigorous imprisonment suspended for fiveyears. On an appeal by the appellant, the Court of Appeal acting under section335 (2) (a) of the Code of Criminal Procedure Act, took the view that upon theevidence adduced at the trial the offence of criminal breach of trust had beenmade out; set aside the conviction and sentence and ordered a retrial of theappellant upon an appropriate indictment (viz for the offence of criminal breachof trust).
Held:
Where the Court of Appeal acting under section 335 (2) (a) of the Code of CriminalProcedure Act orders a retrial upon a determination of an appeal against aconviction, such retrial must necessarily be limited to the offence or offences uponwhich the accused had been convicted by the trial Court, and against which hefad preferred an appeal and none other.
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Cases referred to:
Andhra Pradesh v. Thadi Narayanan – 1962 AIR SC 240.
Gopalan v. The State of Kerala – 1962 Criminal Law Journal 427.
King v. Kumaraswamy – 3 CWR 184.
Attorney-General v. Ratwatte – 72 CLW 93, 95.
APPEAL from the Judgment of the High Court of Negombo.
Padmasiri Nanayakkara with Tilakasiri Alahakoon and Ms. Swama Perera forthe accused-appellant.
8. Aluvihare, SSC for the respondent.
Cur. adv. vult.
June 24, 1999.
PERERA, J.
The accused-appellant (hereinafter referred to as the appellant) to-gether with another was indicted before the High Court of Negombowith having committed offences punishable under section 391 of thePenal Code (Criminal Breach of Trust) and section 459 read withsection 454 of the Penal Code. (The offence of using as genuine aforged document.)
At the conclusion of the trial, the learned High Court Judge heldthat the charges preferred against the accused had not been provedand proceeded to acquit both the accused of all the counts on theindictment. The trial Judge, however, observed that the evidenceadduced at the trial established the commission of the offence ofcriminal misappropriation and acting under the provisions of section177 of the Code of Criminal Procedure Act, No. 15 of 1979, convictedthe appellant of the aforesaid offence and imposed a sentence oftwelve months rigorous imprisonment and suspended the operationof the said term of imprisonment for a period of five years.
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The appellant being aggrieved with the said conviction andsentence, lodged an appeal to the Court of Appeal.
The Court of Appeal at the conclusion of the argument held thatit was not permissible for the trial Judge to convict the appellant ona charge of criminal misappropriation for the following reasons :
Criminal Misappropriation and Criminal Breach of Trust are notcognate offences;
That the provisions of section 177 of the Code of CriminalProcedure Act were not applicable to the facts of the instantcase for the reason that this section was applicable only ifthe evidence discloses that either a single act or a series ofacts is of such a nature that it is doubtful which of the severaloffences the facts proved will constitute;
The charge of misappropriation was not read out to the accused-petitioner either before or in the course of the trial.
For the aforesaid reasons; the Court of Appeal proceeded todischarge the appellant on the charge of criminal misappropriationwhich was an offence punishable under section 386 of the Penal Code.
However, the Court of Appeal proceeded to hold further that thelearned High Court Judge had misdirected himself in regard to theingredients of the charge of Criminal Breach of Trust. It was the viewof the Court of Appeal that entrustment was not absolutely necessaryin all situations to establish a charge of Criminal Breach of Trust. TheCourt of Appeal held that where a person is appointed to an office,and if by reason of such office such person has dominion over anyproperty that would constitute sufficient entrustment for the purposeof establishing the commission of the offence of Criminal Breach ofTrust as defined in section 388 of the Penal Code. The Court of Appealexpressed the view that upon the evidence adduced at the trial, thecKfence of Criminal Breach of Trust had been made out and that the
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learned trial Judge had misdirected himself on this matter when heproceeded to acquit the appellant of the said charge.
The Court of Appeal, accordingly, set aside the findings, theconviction and the sentence imposed on the appellant by the learnedtrial Judge and ordered a retrial of the appellant upon an appropriateindictment. On a perusal of the judgment of the Court of Appeal,it would appear that the appropriate offence referred to is the offenceof Criminal Breach of Trust, (section 388 of the Penal Code.)
The Court of Appeal had made the aforesaid Order acting underthe provisions of section 335 (2) (a) of the Code of Criminal ProcedureAct, No. 15 of 1979. In the present case, this Court is called uponto determine whether this order made by the Court of Appeal fallswithin the scope of the provisions of section 335 (2) of the Codeof Criminal Procedure Act, No. 15 of 1979. Section 335 (2) readsthus :
"In an appeal from a conviction by a Judge of the High Court ata trial without a Jury, the Court of Appeal may –
reverse the verdict and sentence and acquit or discharge theaccused or order him to be retried; or
(£>) alter the verdict maintain the sentence, or without alteringthe verdict increase or reduce the amount of the sentence orthe nature thereof, or substitute a conviction for a differentoffence of which the accused person could have been foundguilty on the indictment and pass such sentence as may bewarranted by law in substitution for the sentence passed."
In this connection it would also be relevant to consider the provisionof section 337 of the Code of Criminal Procedure Act, No. 15 of 1979which specifically provides for appeals against acquittals.
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Section 337 reads thus :
In an appeal from an order of acquittal, the Court of Appealmay reverse such order and direct the accused to be retriedor find him guilty of the same or a different offence of whichthe accused person could have been found guilty on theindictment and pass sentence on him according to law.
In an appeal from any other order, the Court of Appeal mayalter or reverse or set aside such order or make such orderin substitution for the order of the High Court as may bewarranted by law.
I must observe that in the present case there was no appeal filedagainst the order of acquittal made by the High Court in respect ofthe appellant on the charge of Criminal Breach of Trust.
In considering this matter, I have examined the correspondingprovisions of the Indian Code of Criminal Procedure Act. Section 386(£>) of the Indian Criminal Procedure Act provides as follows :
In an appeal from a conviction the Appellate Court may –
(i) reverse the finding and sentence and acquit or discharge theaccused or order him to be retried."
The Indian Supreme Court in Andhra Pradesh v. Thadi NarayanarPconsidered the scope of this section which is on identical terms assection 335 (2) (a) of our Code.
The question that arose for determination by the Indian SupremeCourt in the aforesaid case was whether the High Court wasempowered to reverse the finding of acquittal recorded by the trialCourt in favour of an appellant in respect of an offence which wasdirectly not the subject-matter of the appeal, in the course of an appealpreferred by a person convicted of an offence against the order of
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conviction and sentence imposed on him by the trial Court in theexercise of its appellate powers under section 423 (i) (b) of the oldCriminal Code of Procedure Act of India (reproduced in the present• Indian Criminal Procedure Code as section 386 (b) (i) which is identicalto the provisions contained in section 335 (2) (a) of the Code ofCriminal Procedure Act, No. 15 of 1979.
In this case, the Indian Supreme Court held as follows :
"If an order of conviction is challenged by the convicted person,but the order of acquittal was not challenged by the State, it isonly the order of conviction that was to be considered by theAppellate Court and not the order of acquittal." (vide State ofAndhra Pradesh v. Thadi Narayanarf'K)
Further, in Gopalan v. the State of Kerala,® the Supreme Courtof India held that the High Court may not set aside the order ofacquittal and order a retrial on a charge for that offence, upon whichhe has been acquitted, unless there is an appeal against the orderof acquittal by the State.
Learned Senior State Counsel relying upon the aforesaid decisions,very rightly submitted that where the Court of Appeal acting undersection 335 (ii) (a) of the Code of Criminal Procedure Act orders aretrial upon a determination of an appeal against a conviction, suchretrial must necessarily be limited to the offence or offences uponwhich the accused had been convicted by the trial Court, and againstwhich he has preferred an appeal and none other. Senior StateCounsel, submitted that he was, therefore, unable to resist the appealfiled by the appellant in this case. I must, indeed, place on recordmy appreciation of the assistance given to this Court by Mr. Aluvihare,Senior State Counsel in this case.
Having regard to the specific matter which has come up fordetermination in the present case, it would be appropriate to referto the observations of Shaw, J. in King v. Kumaraswamy,<31 which read;?thus
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“The provision contained in section 336 of the CriminalProcedure Code (section 337 of the Code of Criminal ProcedureAct, No. 15 of 1979) authorizing an appeal at the instance of orwith the sanction of the Attorney-General in the case of an acquittal,even on a question of fact is one unknown to the English CriminalLaw and is somewhat opposed to one of its elementary principles,namely, that no man should be twice placed in jeopardy for thesame offence."
This observation of Shaw, J. in King v. Kumaraswamy has beencited with approval by T. S. Fernando, J. in the case of theAttorney-General v. Ratwatte and another. I
I am, therefore, in agreement with the submission of Senior StateCounsel which finds ample support in the two decisions of the SupremeCourt of India cited by him in support of this proposition. I would,accordingly, allow the appeal of the appellant, set aside the order forretrial of the appellant made by the Court of Appeal and acquit him.
G. P. S. DE SILVA, CJ. – I agree.
WEERASEKERA, J. – I agree.
Appeal allowed andAccused acquitted.