127-NLR-NLR-V-66-HARAMANIS-APPUHAMY-Appellant-and-INSPECTOR-OF-POLICE-BANDARAGAMA-Responden.pdf
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SRI SKANDA RAJAH, J.—Haramanis Appuhamy v. Inspector of
Police, Bandaragama
1964Present: Sri Skanda Rajah, J.HARAMANIS APPUHAMY, Appellant, and INSPECTOR OF POLICE.
BANDARAGAMA, Respondent
S. G. 25711964—M. C. Panadura, 78,171
Appeal—Time limit for fdinct petition of appeal in criminal case—Computation—Criminal Procedure Code, ss. 306, 33S (I) (a).
Where an accused person is convicted and sentenced, the time within whichan appeal should be preferred must be computed from the date on which thereasons for the decision are given, and not from the date of conviction andsentence.
Jones v. Amaraweera (1939) 41 N. L. R. 263, not followed.
Knives Ordinance—Section 3—Imposition of fine—Default sentence must be simpleimprisonment—Criminal Procedure Code, ss. 312 (I) (c), 312 (1) (e) (v).
Under section 3 of the Knives Ordinance, only a fine can be imposedand, therefore, the default sentence should be simple, and not rigorous,imprisonment.
Appeal from a judgment of the Magistrate’s Court, Panadura.
No appearance for accused-appellant.
W. K. Premaratne, Crown Counsel, for the Attorney-General.
June 12, 1964. Sri Skanda Rajah, J.—
When this matter was taken up yesterday, Mr. Premaratne, CrownCounsel, who appeared for the respondent, there being no appearancefor the appellant, brought to my notice the case of Jonesv. Amaraweera1,which followed The King v. de Silva 2 and Kershaw v. JRodrigo 3.
In those cases it was held that the time within which an appeal shouldbe preferred must be computed from the time on which the convictionand sentence were entered and not from the date on which the reasonsfor the decision were given. With great respect to the eminent judgeswho decided those cases I indicated that it appeared to me unreasonable
1 {1939) 41 N. L.R. 263 ; 15 G. L. W. IS.
* {1916) 3 C. W. R. 44.
* {1916) 3 C. W. R. 235.
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SRI SKANDA RAJAH, J.—Haramanis Appuhamy v. Inspector of
Police, Bandaragama
to expect an accused who is convicted and sentenced to file the petitionof appeal before the reasons for his conviction are known. I reservedjudgment to consider this matter and today as Mr. Pullenayagam,Senior Crown Counsel, was in court I invited his assistance. ThisCourt is obliged to him for it.
Section 338 (1) of the Criminal Procedure Code reads thus :—
“Subject to the provisions of the last three preceding sectionsany person who shall be dissatisfied with any judgment or final orderpronounced by any Magistrate’s Court or District Court in a criminalcase or matter to which he is a party may prefer an appeal to theSupreme Court against such judgment for any error in law, or in fact—
(a) by lodging within ten days from the time of such judgment ororder being passed ….”
In this case the accused was convicted and sentenced to pay a fineof Rs. 50 in default 3 months’ rigorous imprisonment on the 2nd March,1964. The reasons were delivered only on 16th March, 1964, and thepetition of appeal was filed on 14^3-64.
If one follows these j udgments one would have to hold that the accused’sappeal was out of time. Section 338 (1) (a), which I have quoted above,states that an appeal can be lodged within ten days from the time of“ such judgment Section 306 states:“The following provisions
shall apply to the judgment of courts other than the Supreme Court:—(1) The judgment shall be written by the District Judge or Magistratewho heard the case and shall be dated and signed by him in oj>en courtat the time of pronouncing it, and in cases where appeal lies shall containthe point or points for determination, the decision thereon, and the reasonsfor the decision”. This would clearfy indicate that in cases where appeallies the point or points for determination should be set out and thereasons for the decision should also be given. If one gives this inter-pretation to the word “ judgment ” in section 338 (1) one cannot resistthe conclusion that an appeal can be filed within ten days of the deliveryof the reasons (judgment). To take a different view seems to me to beunreasonable ; for, it would deprive the appellant of stating his objectionsto the reasons given in the judgment. Of course, it is true that in anappeal from the Magistrate’s Court all the grounds of appeal need notbe set out. But that alone should not be taken into account in con-sidering section 338 regarding the time within which an appeal shouldbe filed. Why should the accused be deprived of the opportunity tocomplain against the reasons given by the Magistrate ? Therefore,with great respect, I would express my disagreement with the threejudgments referred to above and I would hold that this appeal Wasfiled within time.
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SRI SKANDA RAJAH, J.—Haramanis Appuhamy v. Inspector oj
Police, Bandaragama
Mr, Premaratne, very properly, drew my attention to the fact thatunder section 3 of the Knives Ordinance only a fine can be imposedand, therefore, the default sentence should be simple imprisonmentand not rigorous, in view of section 312(1) (e) (v). That section empowersthe Magistrate in such cases where there is no imprisonment mentionedas a punishment in the penal provision to pass a sentence of 3 months’simple imprisonment in respect of a fine of Rs. 50 as in this case.
That again seems to be inconsistent with the provisions of section312 (1) (c). Take, for instance, an excise case in which the accusedis charged under section 46 of the Excise Ordinance. In that case theMagistrate is empowered to pass a sentence of imprisonment which mayextend to 6 months’ rigorous imprisonment, to a fine which may extendto Rs. 1,000 or to both. In such a case if the Magistrate imposed afine, in default of the fine he can sentence the accused only to a termnot exceeding one-fourth of the imprisonment of 6 months mentionedin the section, i.e. only six weeks.
Though section 46 of the Excise Ordinance prescribes bothimprisonment and/or fine it seems unreasonable that in a case where aman is liable to pay a fine of Rs. 50 and not to imprisonment he shouldbe liable to imprisonment in default to a term which may extend tothree months. I think this matter should receive the attention of theLegislature.
I see no reason to in terfere with the conviction or the sentence of finebut I alter the default sentence to three weeks’ simple imprisonment.
Conviction affirmed.Default sentence altered,