097-NLR-NLR-V-73-S.-RAJU-Petitioner-and-R.-A.-JACOB-Inspector-of-Police-Kotahena-Responde.pdf
WEERAMANTRY, J.—Xaju v. Jacob
S17
1968Present: Weeramanlry, J.
S. RAJU, Petitioner, and R. A. JACOB {Inspector of Police, Kotahcna),
Respondent
S. C. 6J/GS—Application in Revision in M. C. Colombo, 1G037IB
Sentence—Slay of hard labour pending an application in revision— Delay incon.municating to the prison authorities the order distnissing the application inrevision—Quantum of relief which the prisoner may be granted—CriminalProcedure Code, s. 341.
Thn potitionor, who had boon sontonrod to a torm of ono yoar’s rigorousimprisonment, did not appeal against thn ardor of tlio Magistrate but made anapplication in rovision. Tho Supreme Court oixlurod that hard labour bo ctn.vixlfrom I9t.li July 1907 till tho disposal of tho application. When tho applicationwas .subsequently dismissed on 14th Soptombor I9C7 tho Court made no orderregarding resumption of hard labour as thoi.fact that him! labour had boonstayed was not brought to its notico. Furtlior’ on account of thn delay, throughoversight, in tho communication to tho prison authorities of tho ordur dismissingtho application in rovision, hard labour was hot resumed until 30th October1907.
It was contended on bohalf of tho petitioner that the ontiro poriod duringwhich ho was kept on romand wi liout hard labour should bo deducted from thotorm of one year’s rigorous imprisonmont imposod on him.
Held, that, in rogard to tho poriod botwoon tho stay of hard labour and thodismissal or tho application in rovision. it would moot tho onds of justice ifono month out of this poriod was reckoned as .part of tlio torm of the sci'itonro.Tho silonco of tho Criminal Procoduro Code on1 such a matter cannot tako awayfrom tho inherent powors of tho Court to grant.' to an applicant in revision, reliefof tho nature contemplated by section 341 (5) which doals with A caso in whichhard labour is stayod ponding an appoal.
Held further, that, in regard to the period of dolay botwoon tho date of dis-missal of tho application in rovision and thn dale of resumption of hard labour,nnmoly liotweon Nth Soptombor and 30th October, tho potitionor should bogiven tho bonofit of tho entirety of this poriod. .
-ft PPI.ICATIOX to revise an order of tho Magistrate's Court,Colombo.
R. Sinnalamby, for tho petitioner.
<£. D. IYadwjodapiliya, Crou n Counsel, for the Attomcy-Cencral.
Cur. adv. vull.
March 15. 1OGS. IVeehamaxtbv, •!.—
The applicant in 1 his case Mas convicted in the Magistrate's Court ofCol-jmlio of I he oflence of I heft, anti was sentenced to a term of ono year’srigorous imprisonment on June 2nd 19G7. Ho did not appeal against
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WEERAMANTBY, J—Jtoju v. Jacob
the order of the learned Magistrate but made an application in revisionwhich was filed on July 13th 1967. On July 17th this court orderednotice of this revision application to issue on the respondent and at thesame time made order that hard labour be stayed till the disposal of thoapplication in revision. The prison authorities wore duly informed ofthis order on July 19th.
The matter thereafter came up for argument on August 2nd 1967 andthis Court delivered its order on September 14th dismissing theapplication. When order wasmadc dismissing the application this Courtmade no order regarding resumption of hard labour as the fact that hardlabour had been stayed was not brougiit to its notice.
It would appear that the fact that hard labour had been stayed passedunnoticed until October 20th 1967^when the petitioner himself drew theattention of the Registrar to the f&H that he was still on remand. Theprison authorities were then immiafdiafely informed of the dismissal ofthe application. The accused states in his petition that hard labour wasresumed on December 5th 1967 but the prison authorities in a com-munication to the Registrar have^tated that the date of resumption ofhard labour was October 30th. For the purpose of this order I shallassume the correctness of the latter date.
In the result, then, the accused petitioner has been on remand withhard labour stayed from July 19th 1967 to October 30th 1967, a periodof three months and eleven days. This period is broadly divisible intotwo portions—that between the stay order and the dismissal of theapplication and that between dismissal of the application and resumptionof hard labour.
The accused petitioner prays that this court bo pleased to direct thatthe entire period during which he’.was so kept on remand without hardlabour be deducted from the term; of one year’s rigorous imprisonmentimposed on him.jl
As this case appears to bo one without precedent I have made arequest for the assistance of Crown Counsel as amicus and I am thankfulto learned Crown Counsel who appeared and assisted the court, inresponse to this request.
There is no authority or provision of law which either Counsel has beenable to discover in regard to a similar matter in so far as applications inrevision are concerned. However, in regard to appeals, there is theprovision contained in section 341 of the Criminal Procedure Code. Thissection deals with appeals preferred by persons sentenced to rigorousimprisonment and provides for :hoir release on their entering into arecognizance with or without sureties in such sum as the court may direct,conditioned to abide by -he judgment of ho Supreme Court and to paysuch costs as may be awarded. 1 he section fun her provides t hat v hen aperson sentenced to a term of rigorous imprisonment has preferred an
W£bnJUi.iL» jai , o.—rzaju v. Jacoo
319
appeal but is unablo to give the required recognizance or other security,ho .* hall be detained in custody without hard labour until the judgment ofthe Supreme Court is made known to ihc Superintendent of Prisons.The Supreme Court is further given power to order that the time so spentby the appellant in custody or any part thereof shall be reckoned as paxtof the term of his sentence.
I have not been able to obtain any guidance from tho English law on theprinciples governing the extent to which custody without hard labouris to be taken into account in reckoning the sentence, for the reason thatby section 1 of tho Criminal Justice Act 194S imprisonment with hardlabour has been done away with.
The duty to release an accused appellant- on bail pending the hearingof his appeal is imposed on tho court in imperative terms by section 341and receives such strict recognition in our law that even habitualcriminals are not denied the benefit of this provision 1. In this respectthe imperative terms of our Code contrast strongly with the correspond-ing Indian provision (section 426 of the Indian Code of CriminalProcedure No. 5 of IS9S) under which release on bail pending appealmay only be granted for reasons to be recorded in writing by theAppellate Court.
It is presumably in view of this right to be released on bail that ourCode makes express provision enabling this court in its discretion togrant relief to an appellant who remains in custody during the pendencyof an appeal by reason only of his inability to furnish the recognizanceor other security ordered by court.
In regard to the first portion of the period of custody without hardlabour, that is to say the period between the stay order and the dismissalof the application in revision, the question I must consider is the applica-bility to revision applications of the aforementioned rules governingappeals.
I sec little distinction in principle between an appeal, in which hardlabour is stayed and a revision application in which this court has madeexpress order to the same effect. Moreover the revision application inthis ease has been filed in respect of an appealable order and I do nobthink it would be correct to deny relief to the applicant on the meretechnicality that what came before this court was a revision applicationand not an appeal. If in the exercise of its jurisdiction this court maygive by way of revision the same relief it may grant by way of appealI see no justification for denyingto an applicant in revision, whose appli-cation has bcc-n entertained by this court, an elementary right which isconferred on every appellant. The silence of the Criminal ProcedureCode on this matter cannot lake awn3- from the inherent powers of this
1 Jt. v. Martin (J023) 25 N. L. Jt. 100 at 172-3—partly, overruled by Kurupv. Banda (1023) 25 N. L. Jt. 402 but not on this point.
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WEERAMAXTRY, J.—Raju t>. Jacob
court to grant relief of the nature contemplated by section 341 {/>) to anapplicant in revision. The grant of such relief is of course a. matterentirely in the discretion of the court and will always be dependent on thoparticular circumstances of each ease. In the circumstances of this caseJ cannot lose sight of the fact that notice has issued upon the revisionapplication and that a stay of hard labour has been expressly ordered bythis court. It is also most unusual for revision applications to bo filedby accused in jail and I urn’orstand this to be the only application sofiled over a long period of time.
In the circumstances I am disposed to make order that tho accusedpetitioner be granted the benefit of half tho period between stay anddismissal of his application. This period is a period of approximatelytwo months, and it would meet the ends of justice if one month out ofthis period is reckoned as part of the term of his sentence.
Wo come now to tho ensuing period of delay between the date of■dismissal of the application to wit September 14th 1967 and the date ofresumption of hard labour to wit October 30th 1967. This delay of onoand a half months ought not in any case to have occurred and has onlyresulted from the altogether unusual situation of an accused person injail resorting to a revision application. There appears in consequence tohave been an oversight in bringing the judgment of this court to thenotice of the prison authorities.
It is true that tho blame for this delay lies at any rate partly at thedoor of the applicant who ought to have brought to the notice of the. prisonauthorities the fact that his application was dismissed. Do was nodoubt aware within a few days of the order of this court that this orderhad not been officially communicated to tho prison authorities and he■should then have communicated the order himself, instead of doing which,he-has chosen to wait till October 20th 1967 before bringing this matterto the notice of this court. However, whatever tho remissness of theapplicant, I think it undesirable that any applicant to this court forrelief should bo under tho impression that his period of confinement hasin any way been lengthened by the non-communication of the order ofthis court to tho prison authorities. As J have observed earlier tho non-communication of the order is understandable in the altogether unusualcircumstances of tho application, but any appearance of resultingprejudice to the accused must he avoided.
I give tho accused petitioner the benefit of tho entirety of this period,namely a period of ono and a half months.
In tho result I direct that two and a-half months of tho period duringwhich tho accused petitioner was in custody without hard labour boreckoned as part of tho term of his sontcnco.
Order varied.