095-NLR-NLR-V-36-NAIR-v.-SILVA.pdf
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MAARTENSZ J.—Nair v. Silva.
[In Revision.]
1935Present: Maartensz J.
NAIR v. SILVA.
P. C. Colombo, 19£72 and 27,467.
Criminal Procedure—Order to enter into bond to abstain from liquor—Disor-derly behaviour on public road—Criminal Procedure Code. s. 326(2) (b).
An accused cannot be ordered to enter into a bond to abstain fromliquor tinder section 326 (2) (b) of the Criminal Procedure Code unlessthe accused is found guilty of the offence with which he was charged.
PPLICATION for revision by the Solicitor-General.
M. F. S. Pulle, C.C., in support.
March 1,1935. Maartensz J.—
This is an application by the Solicitor-General for the revision of theorders made in these proceedings. The first order is one purportingto be made under sub-section (2) (a) and (b) of section 326 by which thePolice Magistrate required the accused to enter into a bond to abstainfrom liquor for a period of one year, or in default to rigorous imprisonmentfor three months. I am not sure whether the sentence in default was tobe served if the bond was not executed or in case the accused committeda breach of the bond. This order cannot be supported as it does notappear from the proceedings either that the accused pleaded guilty to orthat he was found guilty after trial of the charge made against him ofdisorderly behaviour on the public road in breach of section 60 (2) ofJOrdinance Nq. 16 of 1865, as amended by Ordinance No. 17 of 1912.The accused did not enter into a bond in terms of ’this order but heappears to have entered into a bond to keep the peace and to be of goodbehaviour. I say ' appears ’ because it is not clear that the accusedhas executed the bond. There is a thumb impresssion on the bond,that thumb impression is not on the face of the bond identified as thatof the accused. The accused was convicted on February 12 of a similaroffence committed on February 4 and was on conviction sentenced toone month’s rigorous imprisonment. On the same day he was called• upon to show cause why he should not be sentenced to imprisonmentfor a breach of the bond which I have referred to. He said he had nocause to show except that he was insane, and was sentenced to threemonths’ rigorous imprisonment. I have already pointed out that the orderdirecting the accused to enter into a bond cannot be sustained and itfollows that the sentence of three months’ rigorous imprisonment for abreach of the bond must also be set aside. I direct accordingly.
I would like to point out that the accused should have been calledupon to show cause why he should not be punished for a breach of thebond in the proceedings in which the order was made, namely, caseNo. 19,272. It was quite irregular to make the order in case No. 27,467in which the accused was convicted of disorderly behaviour onFebruary 12.
AKBAR J.—Ramanathan Chettiar v. Ibrahim.
445
In case No. 27,467 it would appear that the Magistrate sentencedthe accused to one month’s rigorous imprisonment because of the previousconviction. As I have held that the previous conviction cannot besustained I think the sentence should be reduced to the period the accusedhas already served and that he should be discharged at once.
Let the. Superintendent of Prisons, Welikada, be informed to-dayof this order by telephone.
Set aside.