013-NLR-NLR-V-31-KING-v.-KARUPPEN.pdf
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Present: Akbar J.
KING v. KABUPPEN.38—D. C. (Crim.) Avissawella, 18,956.
Appeal—Pointof law—Certificatebyproctor—CriminalProcedure
Code, se. 335 and 888.
An Advocate or a Proctor who certifies a point of law undersection 340 of the Criminal Procedure Code pledges- bis professionalreputation to the propriety of the appeal.
That the sentence passed is excessive is no point of law unless astatutory provision regarding the sentence has been violated.
^I^PPEAL from s conviction by the District Judge of Avissawella.
No appearance for the appellant.
Ilangakoon, C. G., for the respondent.
July 10, 1929. Akbab J.—
The accused was convicted in this case on a charge of usingcriminal force to a girl to outrage her modesty, an offence punishableunder section 345 of the Penal Code, and was sentenced to threemonths’ rigorous imprisonment. Mr. J. H. Rasiah Joseph appearedfor the accused in the District Court, and I see from the record thathe asked for leave to appeal against the conviction and sentenceand that it was refused. Under section 835 there is only an appealon a point of law from a conviction in a District Court where apunishment does not exceed three months without any otherpunishment. Under section 339 an appeal on a matter of lawhas to be certified by an Advocate or Proctor that the matter of lawis a fit question for adjudication by the Supreme Court. Theimportance of this provision of the law was pointed out by thedraughtsman of the Code in the caseof Gunawardene v.
Alexander Bonser C.J. made the following remarks:—“No appeallies in this case except on a matter of law. To preventfrivolous appeals being lodged, the Code requires that an appealon a matter of law be certified by an Advocate or a Proctor, whothereby pledges his professional reputation to the propriety of theappeal. I am sorry to say that this petition is a frivolous one,and I am driven to the conclusion either that the Proctor whosigned the petition is incompetent or that he ha's trifled with theCourt.” So much is the importance 'attached by the Supreme
1 (1901) 4 N. L. R. 98
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1829.
Akbab J.
King v.Karuppen
Court to this certificate of appeal that the Supreme Court held inLienard v. Abdul Rahim 1 that the Counsel for the accused couldnot raise any point of law even though it may be a good point whichwas not stated in the certificate of the Advocate or Proctor. Imay also refer to the following cases:—Horan v. Gaffoor,2 Nagalingamv. Jayasinghe 3 the case reported in 1 Balasingham, Notes of Cases,page 27, and V. Veerasinkam v. K. Katiresu,* and also the casesreported in Vanderstraaten’s Beports, pages 56 and 42.
The petition of appeal contains eight grounds of appeal on thefacts, which are of course clearly irregular as the accused, as I havestated, has no appeal on the facts. The Proctor has certified threepoints of law, which are as follows: —
(а)The.sentence passed on the appellant is very excessive.
(б)In the circumstances of the case the application made under
section 325 of the Criminal Procedure Code must havebeen allowed and acted upon.
(c) In view of the fact that the learned District Judge says thatthis case is not altogether a false case, the benefit of. alldoubt must be given to the accused-appellant and hemust be discharged.
The ground , of appeal (c) is not an appeal on a point of law but onfacts. The other two points certified by the Proctor are in myopinion not matters of law. As pointed out by Browne C.J. inQueen v. Daniel,3 4 5 there is an appeal on a point of law regardingthe punishment when the trial Judge has clearly erred in law byawarding a punishment which he has no power to give, or when aminimum amount of penalty is prescribed and the Judge has notimposed it. I do not think that there is an appeal from the sentenceon the ground that it is excessive under section 338 of the CriminalProcedure Code, because that section states that a party dissatisfiedwith any judgment or final order passed by a Criminal Court canonly prefer an appeal for any error in law or in fact. Further, thissection is subject to section 335 of the Code. In my opinion thepoints of law certified by the Proctor are not points of law at all,and I dismiss the appeal.
Affirmed.
3{1918) 5 C. W. R. 45.
4(1901) 3 Browne’s Reports 99.
61 N. L. R. 87.
' (1901) 4 N. h. R. 25.f 1 Car. L. Reports 3.