171-NLR-NLR-V-48-GHOUSE-Appellant-and-ELIATAMBY-Inspector-of-PoliceRespondent.pdf
JAYETILEKE J.—Ghouse v. Eliatamby.
557
1947Present: Jayetileke J. s
GHOUSE, Appellant, and ELIATAMBY (Inspector of Police),
Respondent.
S. C. 793—M. C. Colombo, 29J82.
Criminal Procedure Code—Section 325—When order may be made underthat section—First offender—Sentence of imprisonment.
An order can 'be made under section 325 of the Criminal ProcedureCode only where the offence committed is a trivial one.
The principle that first offenders should not be sent to jail is not onethat should be applied where the offence committed is of a grave , nature.
PPEAL from a judgment of the Magistrate, Colombo.
H. V. Perera, K.C. (with him E. F. N. Gratiaen, K.C., and S: J.Kadirgamar), for the accused, appellant.
Boyd Jayasuriya, C.C., for the Attorney-General.
Gur. adv. vult.
November 7, 1947. Jayetileke J.—
The accused was charged under section 345 of the Penal Code withhaying used criminal force to a young lady with intent to outrage hermodesty. He pleaded guilty to the charge, and was sentenced to under-go six months’ rigorous imprisonment.
The facts appear in the statement P 1 made by the lady to the Policewhich was read in evidence, by consent, after the accused’s plea wasrecorded, and was admitted by Counsel for the accused to be correct.
P 1 shows that, when the lady was returning home on a bicycle fromthe office in which she worked, the accused rode up to her on a bicyclefrom behind, at a somewhat lonely spot, and molested her.
558
J AYETILEKE J.—G house v. Eliatamby.
The accused appealed against the sentence, and also made an applica-tion to have the sentence revised. The appeal and the applicationwere listed for hearing together.
It appears from the affidavits that are before me that the accusedis 18 years of age, that he belongs to a respectable family, that he hasborne a good character, and that, at the date he committed the offence,he was attending the Royal College.
Mr. Perera made an appeal to me to deal with the accused as a firstoffender under section 325 of the Criminal Procedure Code. The pro-ceedings show that a similar appeal was made to the Magistrate. TheMagistrate was of opinion that the offence was one of such gravity thatit was necessary to impose a heavy penalty so that it may act as adeterrent. He says : —
“ If it be known that these youths could go about committingthese acts of indecency, the public roads will not be safe for women. ”
The offence is one which is punishable with imprisonment, of eitherdescription, for a period of two years, and with- whipping, and I agreewith the Magistrate that it is one of great gravity? In view of the gravityof the offence, I do not think I have the power to release the accused,without immediate punishment, under section 325 of the CriminalProcedure Code. It seems to me that an order can be made under thatsection only where the offence that has been committed is a trivial one.
There is hardly any difference in phraseology between that sectionand the corresponding section of the Probation of Offender’s Act, 1907,of England. The latter section reads : —
“ 1.— (1) Where any person is charged before a court of summaryjurisdiction with an offence punishable by such court, and the courtthinks that the charge is proved, but is of opinion that, having regardto the character, antecedents, age, health, or mental condition of theperson charged, or to the trivial nature of the offence, or to the ex-tenuating circumstances under which the offence was committed,it is inexpedient to inflict any punishment or any other than a nominalpunishment, or that it is expedient to release the offender on probation,the court may, without proceeding to conviction, make an order either—
(i.) dismissing the information or charge
(ii.) discharging the offender conditionally on his entering into arecognizance, with or without sureties, to be of good behaviour andto appear for conviction and sentence when called on at any timeduring such period, not exceeding three years, as may be specifiedin the order.
(2) Where any person has been convicted on indictment of anyoffence punishable with imprisonment, and the court is of opinionthat, having regard to the character, antecedents, age, health, ormental condition of the person charged, or to the trivial nature ofthe offence, or to the extenuating circumstances under which theoffence was committed, it is inexpedient to inflict any punishmentor any other than a nominal punishment, or that it is expedient torelease the offender on probation, the court may, in lieu of imposing
JAYETLLEKE J.—Ghouse v. Eliatamby.
559
a sentence of imprisonment, make an order discharging the offender,conditionally on his entering into a recognizance, with or withoutsureties, to be of good behaviour and to appear for sentence whencalled on at any time during such period, not exceeding three years,as may be specified in the order.
The court may, where it makes an order under this section,further order that the offender shall pay such costs of the proceedings,or such damages for injury or compensation for loss (not exceedingin the case of a court of summary jurisdiction twenty-five pounds,or, if a higher limit is fixed by any enactment relating to the offence,that higher limit), as the court thinks reasonable, or both such costsand damages or compensation.
Where an order under this section is made by a court of summary •jurisdiction, the order shall for the purpose of revesting or restoringstolen property, and of enabling the court to make orders as to therestitution or delivery of property to the owner and as to the paymentof money upon or in connexion with such restitution or delivery,have the like effect of a conviction. ”
Kenny in his “ Outlines of Criminal law ” says at pages 603 and 604 : —“ This lenient release is not appropriate where the first offence isone of great gravity, like coining or forgery or doing grievous bodilyharm. Its indiscriminate application is apt to produce in thelocality an impression that every person may commit one crime withimpunity …. Obviously this light treatment must havesome tendency to encourage crime ; both by the offenders’ prospectof comparative immunity and also by the victim’s reluctance toundertake the trouble of prosecuting for a result so slight. ”
On page 603, there is a footnote which reads : —
“ On October 26, 1925, the Court of Criminal Appeal in two badcases of theft by first offenders confirmed the sentences of ninemonths and of twelve months ; and one of three years’ penalservitude for a second conviction. ”
Mr. Perera invited my attention to the passage so often quoted fromBertram C.J’s judgment in Gunasekera v. Solomon1, that the policyof the law is that first offenders should, so far as possible, not be sent tojail.
The facts of the case in which that observation was made show thatthe offence was quite a trivial one. The charge was one of theft, and theMagistrate was of opinion that the accused was bent not so much on steal-ing as on causing annoyance or injury to the complainant. On appeal,the accused was acquitted of theft, but was convicted of criminal inti-midation. I find it quite impossible to take the view that Bertram C.J.intended that observation to apply to grave cases. In Gunasinghe,Sub-Inspector of Police v. Perera *, Abraham C.J. said : —
“ Courts ought not to regard it as a rule that first offendersare not to be sent to prison where crimes of violence are concerned. ”
* (1923) 25 N. L. R. i74.1 5. C. No. 688—S. C. Minutes of IP. 11.37. .
48/42
560
Peries v. Per era.
Mr. Ferera also urged that, for the first offence committed by theaccused, the sentence that was imposed by the Magistrate is too severe.PI shows that the lady had often met the accused on the road, and that,on those occasions, he did nothing to offend her. He did not dog her stepsor pursue her. In these circumstances, it may be possible to acceptthe view put forward by Mr. Perera that the act of the accused was animpulsive act. Having regard to the previous character of the accused,which has been put in issue, and has not been challenged, I think Iwill be justified in making a substantial reduction in the sentence. Iwould direct that the accused be sentenced to undergo simple imprison-ment for a period of six weeks.
Sentence varied.