041-NLR-NLR-V-12-ABEYAKOON-v.-PHILIP-et-al.pdf
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Present: Mr. Justice Grenier.
ABEYAKOON v. PHILIP el al.
P. C., Colombo (Addl.), S, 753.
Keeping a common gaming place—Unlawful gaming—Charges tried inone proceeding—Legality—Enhancement of sentence—OrdinanceNo. 17 of 1889, ss. 4 and 5 {a)—Criminal Procedure Code, ss. 184and 425.
A charge of keeping a common gaming place against one accused .under section 5 (a) of Ordinance No. 17 of 1889, and a charge ofgaming under section 4. of the said Ordinance against others may bejoined and tried together at one and the same trial.
A
PPEAL from convictions under sections 4 and 5 (a) ofOrdinance No. 17 of 1889. The material facts appear in
the judgment. .
Bawa (with him Morgan, Tisseveresingke, and Tambayak), for theaccused, appellants.
Walter Pereira, K.C., S.-G., for the Crown.
Cur. adv. wit.
June 7, 1909. Grenier A.J.—
This case was well argued for the 29th accused-appellant byMr. Bawa, but I see no reason to interfere with the verdict of theMagistrate as regards him or the other appellants. The facts are
1909.June 7.
1909.
June 7.
Grenier
A.J.
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very fully stated in the judgmeut of the Magistrate, who had siftedand analyzed the evidence with great care. His conclusions appearto me quite sound,'and I cannot therefore interfere on the merits.
In regard to the objection takon by counsel for appellants to theregularity of the proceedings, in that the Magistrate had consolidatedthe case against the 29th accused for keeping a gaming place undersection 6 (a) of Ordinance No. 17 of 1889 with the case against theother appellants for unlawful gaming, under section 4 of OrdinanceNo. 17 of 1889, I am inclined to take the view submitted by theSolicitor-General that section 184 of the Criminal Procedure Codeapplies, as they were different offences committed in the sametransaction, and therefore could be tried together. But assumingthat section 184 is not applicable, there is section 425 of the CriminalProcedure Code, which provides that no judgment passed by acourt of competent jurisdiction shall be reversed or altered onappeal or revision on account of any error, omission, or irregularityin the complaint, summons, warrant, charge, judgment, or otherproceedings before or during trial, &c., unless such error, omission,or irregularity, or want has occasioned a failure of justice.
It cannot be said the 29th accused was in any way prejudiced bythe course adopted by the Magistrate, or that in consequence of whatthe Magistrate did there has been a failure of justice. The appellantwas represented by counsel, and had the benefit of a careful andexhaustive trial, and his substantial rights have in no sense beenaffected or prejudiced by the consolidation of the two cases.
The Solicitor-General pressed for a heavier sentence on the 29thaccused than, the fine of Rs. 200 imposed by the Magistrate, whilsthis learned counsel asked me. to reduce, the fine. According to the.evidence unlawful gaming has been carried on for some time pastin the shed in question. The Magistrate was of opinion that ithad been regularly used as a common gaming place. He says the.appearance of the shed when he visited the spot confirmed him inthis opinion. The 29th accused was the man who collected “ thon,”not only on the occasion in question, but on previous occasions.It is clear that he is the person who must be held primarily respon-sible for the crime and demoralization which are inseparable from acommon gaming place. If there are no keepers of gaming places inthe villages there will be no gamblers. The evidence shows thatwhen the police raided the spot and after, the 29th accused acted ina very defiant manner, and had wha.t was supposed to be a revolverin his hand. In these circumstances I think that a fine wasinadequate, and was not a sufficiently deterrent sentence. I wouldtherefore set aside the fine and impose in lieu thereof a sentenceof six months’ rigorous imprisonment. The appeal of the otheraccused will be dismissed.
Appeal dismissed.