024-SLLR-SLLR-2002-3-WEERAWARNAKULA-v.-THE-REPUBLIC-OF-SRI-LANKA.pdf
CA
Weerawamakula v. The Republic of Sri Lanka
213
WEERAWARNAKULA
v.
THE REPUBLIC OF SRI LANKA
COURT OF APPEALFERNANDO, J. ANDAMARATUNGA, J.
CA NOS. 24/2000 AND 25/2000HC KANDY NOS. 997/93 AND 998/93MARCH 04, 2002
Penal Code, sections 392 and 467 – Three convictions – Code of Criminal ProcedureAct, No. 15 of 1979, sections 16, 300, 321 and 336 – Discretion of court to directthe separate sentences of imprisonment to run concurrently.
The accused-appellant was convicted after trial in No. 996/83, High Court, Kandy,on the charge of committing criminal breach of trust and falsification of accounts.He was found not guilty of the charge of conspiracy to commit criminal breachof trust and was sentenced to a total term of 36 years Rl, but as the sentenceswere ordered to run concurrently, the total period of imprisonment was 8 years.
In case No. 997/83 on 24.03.2000 the accused-appellant was charged on 5 counts.On the accused pleading guilty he was sentenced to a term of 8 years Rl inrespect of counts 1 and 2 and to a term of 3 years Rl in respect of counts 4,5 and 6. The sentences were ordered to run concurrently and the total periodwas 8 years’ Rl.
On the same day the accused-appellant pleaded guilty to counts 1, 2, 4, 5 and 6in case No. 998/93. He was sentenced to 5 years Rl each in respect of counts1 and 2, and a term of 3 years Rl, in respect of counts 4-6, the sentences torun concurrently. The total period was 5 years. At the time the accused-appellantwas sentenced in No. 997/93, he was serving imprisonment ordered in No. 996/93.
It was contended that the trial Judge should have ordered the sentence ofimprisonment in No. 998/93 concurrent with the sentence of imprisonment inNo. 997/93 given by him on the same day. It was further contended that, whenthe accused-appellant was sentenced in case No. 997/93, and thereafter wassentenced in case No. 998/93, on the very same day, he was not actually undergoingimprisonment ordered in case No. 997/93. It was the contention that a person is“actually undergoing imprisonment only when he is admitted to and accepted bythe prison as a prisoner”.
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Held:
The general principle regarding sentences is that the sentence takes effectfrom the time it is pronounced.
A direction that a sentence of imprisonment shall run concurrently with anothersentence is strictly speaking, not a part of the sentence but a direction withregard to the execution of same.
Per Amaratunga, J.
. ‘The moment a person is sentenced to imprisonment prison officers presentin court take charge of the sentenced prisoner and thereafter such person isin the custody of the prison authorities. This signifies the commitment ofimprisonment; signing of the committal by the Judge and admitting the prisonerto the prison are mere administrative acts.”
The accused was undergoing the 1 st sentence of imprisonment when the 2ndand 3rd sentences were passed and accordingly the sentences should runconsecutively. Thus, the trial Judge did not have the power to make the sentenceof imprisonment ordered in case No. 998/93 concurrent – with the sentencepassed in case No. 997/93, and the accused-appellant cannot contend that thetrial Judge as a matter of law should have made such an order.
However, as the offences were committed between 1984-1986 and the indictmentswere filed in 1993, the court taking all matters into consideration, in the exerciseof the power under section 336 could substitute lesser sentences in place ofthe sentences imposed by the trial Judge.
APPEALS from the High Court of Kandy.
Cases referred to :
Shanmugam v. Sinnappen- (1907) 1 ACR X1.
Godagama v. Mathes – (1908) 4 ACR VIII.
Emperor v. Bhikki and Others – (1920) 21 Cr. L.J 398.
King v. Mendra – (1922) 24 NLR 120.
In re. Muttusamy- (1905) 2 Weirs Criminal Rulings 451.
Gulzar Mohamed v. The Crown – (1951) 52 Cr. L.J 238.
Dr. Ranjit Fernando with Sandamalee Munasinghe, Sandamalee Manatunga and
Kavindra Nanayakkara for accused-appellants.
Yasantha Kodagoda, Senior State Counsel for Attorney-General.
Cur. adv. vult.
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Weerawamakula v. The Republic of Sri Lanka
(Amaratunga, J.)
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April 30, 2002
GAMINI AMARATUNGA, J.
The accused-appellant has preferred these two appeals against thesentences imposed on him by the learned High Court Judge of Kandyin case Nos. NJ 997/93 and 998/93 of the High Court of Kandy. Theaccused-appellant was indicted in the High Court of Kandy in threecases in respect of offences alleged to have been committed by himwhilst serving as the Manager of the People’s Bank branch inSenkadagala. In the first case, bearing No. 996/93 he was chargedwith having committed the offences of conspiracy to commit criminalbreach of trust, criminal breach of trust and falsification of accountspunishable under sections 392 and 467 of the Penal Code. In this casehe was convicted after trial for the charges of committing criminalbreach of trust and falsification of accounts. He was found not guiltyof the charge of conspiracy to commit criminal breach of trust.
In respect of the charges for which the appellant was found guiltyhe was sentenced to a total term of 26 years rigorous imprisonmentbut as the sentences were ordered to run concurrently, the total periodof imprisonment was eight years. Against his conviction and sentencethe accused-appellant filed CA Appeal No. 12/99 but withdrew it laterwith permission of Court.
In case No. 997/93 the accused-appellant was charged on fivecounts. The first charge was a charge of conspiracy to commit criminalbreach of trust in respect of Rs. 14,425,975. The other counts werefor committing criminal breach of trust and for falsification of accounts.On 24.03. 2000 when the case came up for trial, .the accused-appellantpleaded guilty to charges 1, 2, 4, 5 and 6 framed against him.
He was sentenced to a term of eight years rigorous imprisonmenteach in respect of counts 1 and 2 and to a term of 3 years rigorousimprisonment in respect of each count from 4th to 6th counts. Thesentences were ordered to run concurrently and thus the total periodof imprisonment was 8 years.
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On the same day the accused-appellant pleaded guilty to counts1,2, 4, 5 and 6 in case No. 998/93. Those charges were also in respectof offences similar to those to which the accused-appellant pleadedguilty in case No. 997/93 on the same day. In case No. 998/93, theaccused-appellant was sentenced to five years rigorous imprisonmenteach in respect of counts 1 and 2 and to a term of 3 years rigorousimprisonment in respect of each count from 4th to 6th counts. Thesentences were ordered to run concurrently. Thus, the total period ofimprisonment was five years. At the time the accused-appellant wassentenced in case No. 997/93 he was serving the imprisonment 40ordered in case No. 996/93.
The learned counsel for the accused-appellant contended that thelearned High Court Judge should have ordered the sentences ofimprisonment imposed on the accused-appellant in case No. 998/93concurrent with the sentences of imprisonment ordered in caseNo. 997/93 by him on the same day. Section 300 of the Code of CriminalProcedure Act, No. 15 of 1979, provides as follows:
“When a person actually undergoing imprisonment is sentencedto imprisonment such imprisonment shall commence at the expirationof the imprisonment to which he has been previously sentenced.” so
At the time the accused-appellant was sentenced in caseNo. 997/93, he was serving the imprisonment ordered in caseNo. 996/93 and in view of the provisions of section 300 quoted abovethe sentence imposed in case No. 997/93 takes effect only at theexpiration of the sentence ordered in No. 996/93. The learned counselargued that when the accused-appellant was sentenced in caseNo. 997/93 on the same day, he was not “actually undergoingimprisonment” ordered in case No. 997/93. He contended that a personis actually undergoing imprisonment only when he is admitted to andaccepted by the prison as a prisoner. The learned counsel accordingly a>submitted that the learned High Court Judge should have ordered thesentences imposed in case No. 998/93 to run concurrently with thesentences he has imposed in case No. 997/93.
A direction that a sentence of imprisonment should run concurrentlywith another sentence is strictly speaking not a part of the sentence
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Weerawamakula v. The Republic of Sri Lanka
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but a direction with regard to the execution of the sentence. Thegeneral principle regarding sentences is that the sentence takes effectfrom the time it is pronounced. In Shanmugam v. SinnapparP> Middleton,J. stated that a sentence would run from the time it is pronouncedunless otherwise ordered. Sections 16 and 300 of the Code of CriminalProcedure Act provide exceptions to this general rule. Section 16provides for a situation where a person at one trial is convicted ofany two or more distinct offences. Then the Court may in its discretionsentence such person for such offences to the several punishmentsprescribed therefor. Such punishments when consisting of imprisonmentto commence, unless the court orders them to run concurrently, theone after the expiration of the other in such order as the court maydirect. According to this section, the court has a discretion to directthat the separate sentences of imprisonment shall run concurrently.
Section 300 is applicable to a different situation than that contemplatedby section 16 of the Code. It applies to a situation where a personactually undergoing imprisonment is in some other case again sentencedto imprisonment. According to the section the latter imprisonment shallcommence to operate at the expiration of the imprisonment to whichhe has been previously sentenced. This is an exception to the generalrule that a sentence begins to operate from the time it is pronounced.Section 300 is couched in imperative terms and in view of the wordingof the section no court has the power or discretion to order that asentence of imprisonment ordered by it shall run concurrently witha sentence of imprisonment ordered in a previous case which the'accused is serving when he is sentenced in the 2nd case. In Godagamav. MathesfiZ) Wood Renton, J. stressing the imperative nature of section321 of the Criminal Procedure Code of 1898 (which was identical withpresent section 300 of the Code of Criminal Procedure Act) said that“[I] t is not competent for a Magistrate to order that a sentence passedon an offender who is already sentenced for another offence shall runconcurrently with the previous sentence.”
The Indian counterpart of section 300 was section 397 of the IndianCriminal Procedure Code of 1898 and presently it is section 427 ofthe Code of Criminal Procedure Act, No. 2 of 1974. The present Indiansection is similar to section 397 of the earlier Code. Under section
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397 no discretion was available to court to make the later sentenceof imprisonment concurrent with a previous sentence of imprisonmentordered in an earlier case. Emperor v. Bhikki and Others!3'. By anamendment to the Indian Criminal Procedure Code in 1923 the words“unless the court directs that the subsequent sentence shall runconcurrently with the previous sentence” were added to section 397and in view of this the courts now have a discretion to order thata subsequent sentence of imprisonment shall run concurrently with aprevious sentence of imprisonment. But, there are no similar words noin section 300 of our law.
The learned counsel for the accused-appellant cited the case ofKing v. Mendra,w where it was held that the court has jurisdiction toorder a sentence of imprisonment to run concurrently with a sentenceof imprisonment ordered in a previous case which the accused wasserving at the time he was sentenced in the subsequent case. In thiscase the court has not considered the earlier case of Godagama v.Mathes (supra). The Court has also not considered the actual wordsused in section 321 of the Criminal Procedure Code to see whetherthe section has left any room for the exercise of discretion by the iaocourt when the subsequent sentence of imprisonment was passed. Thedecision is contrary to the letter as well as the spirit of the section.
We hold that King v. Mendra has been wrongly decided and accordinglyoverrule it.
Even if there is no discretion available to court, if the phrase“actually undergoing imprisonment” is interpreted in the way suggestedby the learned counsel for the accused-appellant it is possible to arguethat the learned High Court Judge had the power to order the sentencesof imprisonment ordered in case No. 998/93 to run concurrently withthe sentence of imprisonment ordered in case No. 997/93. According imto the learned counsel’s argument a person can be said to be actuallyundergoing imprisonment only when he is taken to prison and acceptedand admitted as an inmate of the prison. This argument is contraryto the general principle that a sentence takes effect from the timeit is pronounced. In criminal courts we every day see this generalprinciple given effect to.
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Weerawarnakula v. The Republic of Sri Lanka
(Amaratunga, J.)
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The moment a person is sentenced to imprisonment prison officerspresent in court take charge of the sentenced prisoner and thereaftersuch person is in the custody of the prison authorities. This signifies
the commencement of imprisonment. Signing of the committal by theJudge and admitting the prisoner to the prison are mere administrativeacts.
In the case of In re Muttusamy5> it was held that a person sentencedto imprisonment is undergoing that imprisonment within the meaningof section 397 (of the Indian Code) from the moment the sentenceis passed. In Gulzar Muhammed v. The Crowd® the accused wassentenced to imprisonment on the same day in three cases, one afterthe other by the same Magistrate. It was contended that section 397of the Indian Criminal Procedure Code was not applicable as theaccused was not actually undergoing imprisonment in respect of thefirst case when he was sentenced in the other two cases. It was heldthat a person is actually undergoing imprisonment within the meaningof section 397 from the moment the sentence is passed and that heneed not actually pass into the portals of the jail. The accused wasundergoing the 1 st sentence of imprisonment when the 2nd and 3rdsentences were passed and accordingly in view of section 397 thesentences should run consecutively. This makes it clear that when thesame person is tried and sentenced to imprisonment on the same daywhilst he was still in the well of court after the 1st sentence ofimprisonment, the 2nd sentence should run consecutively. Accordingly,we hold that the learned High Court Judge did not have the powerto make the sentence of imprisonment ordered in case No. 998/93concurrent with the sentence passed in case No. 997/93 and that theaccused-appellant cannot contend that the learned Judge as a matterof law should have made such an order. In the circumstances we seeno merit in this appeal in so far as it relates to the orders made bythe learned High Court Judge!
However, it is our view that this Court is not without power to grantrelief to the accused-appellant, without offending section 320, if itappears to court that the accused-appellant deserves relief in thecircumstances of the case. Section 336 of the Code of CriminalProcedure Act, No. 15 of 1979 enables this court in interfere with thesentence in an appropriate case. Section 336 reads as follows:
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“On an appeal against the sentence whether passed after trialby jury or without a jury, the Court of Appeal shall, if it thinksthat a different sentence should have been passed, quash thesentence and pass other sentence warranted in law by the verdict(whether more or less severe) in substitution therefor as it thinksought to have been passed and in any other case shall dismissthe appeal.”iso
In this instance although three separate indictments were forwardedagainst the accused-appellant the subject-matter of all three indictmentswas a single transaction which continued for over two years. For theoffences committed in this single transaction three indictments werepresented in order to comply with the provisions of section 165 (2)of the Code of Criminal Procedure. All three cases were basedmainly on documentary evidence and in view of this, trials in caseNos. 997/93 and 998/93 would have taken a long time to conclude.
By pleading guilty the accused-appellant has saved the time of Court.The accused-appellant has not proceeded with the appeal filed against 190the conviction and sentence in case No. 996/93. According to thesubmissions made on behalf of the accused-appellant, the Bank hasrecovered a substantial part of the money involved in the transactionfrom the respective account-holders and has filed 16 civil cases againstthe accused-appellant and the account-holders to recover the balancemoney. The offences were committed between 1984 and 1986, andthe indictments were filed in late 1993.
The accused-appellant was sentenced in May, 2000, nearly fifteenyears after the 1st offence. If not for the provisions of section 165(2) the accused-appellant could have been charged in one case for 200all offences committed by him in one transaction and in the eventof a conviction the accused-appellant would have been entitled toconcurrent sentences under section 16 of the Criminal Procedure Code.
At the time of the investigation the accused-appellant had been inremand from April, 1987 to September, 1988, nearly 18 months. In1987 the accused-appellant was 47 years old and presently he is well
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Weerawamakula v. The Republic of Sri Lanka
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over 60. The maximum periods of imprisonment prescribed undersections 392 and 467 are 10 and 7 years, respectively. Taking all thosematters into consideration we are of the view that this is a fit casefor us, in the exercise of our powers under section 336 quoted above, 210to substitute lesser sentences in place of the sentences imposedby the learned High Court Judge.
We, accordingly, set aside the sentences of 8 years rigorousimprisonment each imposed in respect of counts 1 and 2 in case No.997/93 and substitute therefor a sentence of 3 years rigorousimprisonment each in respect of counts 1 and 2. We affirm the learnedHigh Court Judge’s direction that all sentences imposed in caseNo. 997/93 shall run concurrently. Accordingly, the total period ofimprisonment in respect of case No. 997/93 is 3 years.
We also set aside the sentence of 5 years rigorous imprisonment 220each ordered in respect of counts 1 and 2 in case No. 998/93 andsubstitute therefor a sentence of 3 years rigorous imprisonment eachin respect of those counts. We affirm the learned Judge’s directionthat the sentences in case No. 998/93 shall run concurrently. Thetotal period of imprisonment in respect of case No. 998/93 is 3 years.
In the result the total period of imprisonment in respect of caseNos. 997/93 and 998/93 is reduced from 13 years to 6 years rigorousimprisonment. In view of this the appeal against sentence is partlyallowed.
FERNANDO, J. – I agree.
Appeal dismissed; sentence varied.