081-NLR-NLR-V-19-SHOCKMAN-v.-BALAYA.pdf
( 812 )
1916*
[Full Bench.]
Present: Wood Renton G.J. and Ennis and Be Sampayo JJ.
SHOCKMAN v, BALAYA.964—P. 0. Gampola, 10,076.
Sentence of imprisonment in default of payment of fine—May fine belettedafter aooueed hadundergoneimprisonment f—Criminal
Procedure Code, ». 818.
Where a person was sentenced to pay a fine, and in default toundergo rigorous' imprisonment for a term, and where he underwentthe preBoribed term of imprisonment, it is not oompeteat to issuea warrant for the levy of the amount of the fine.
The levying of the fine and the oarrying out of the sentence of;imprisonment are alternatives. (
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nn HE faots appear* from the judgment. v
Bartholomeuez (with him Naganathan), lor accused, appellant.
Garvin, S.-G., lor the Crown.
I
October 24, 1916. Wood Renton C.J.—.
This case raises an important question under section 812 of theCriminal Procedure Code. The appellant was .convicted in thePolice Court of Gampola ol having been in the illegal possession ofan excisable artiole, and was sentenced to pay a fine of Rs. 250,and in default to undergo rigorous imprisonment for a period of sixweeks. He did not pay the fine, and duly underwent the prescribedterm of imprisonment. On his discharge from jail he found thatin the meantime a warrant had issued for the levy of the amountof the fine, and that certain movable property belonging to himhad been seized in execution of the warrant. The appellantforthwith applied to the Police Magistrate for the release of hisproperty from seizure. The Police Magistrate deolined to interfere,holding that the appellant’s remedy was to pay the amount of thefine himself. The present appeal is brought from that. order.Sub-sections (1) and (2) of section 812 correspond with section 886of the Indian Code of Criminal Procedure, and the interpretationof the latter section, which has been adopted in India (see Gour’sIndian Penal Code, vol. 1., 183, 184) is to the effect that a period ofimprisonment undergone in default of payment of a fine, whileit purges the default, is 'no satisfaction of the fine, which may stillbe recovered by levy.
( 318 )
If the present ease had to be disposed of on sub-sections (1) and(2)of section 312 of the Code of Criminal Procedure, or the analogousprovisions of section 60 of the Penal Code, we should have found*I think, that it was necessary to define the practice in the samesense. Clauses (/), (g), and (h) of sub-section (1) of section 812distinctly point to the conclusion that the fine may be leviedalthough the offender has been imprisoned. But in sub-section (3)of section 812 we have an enactment which is not to be foundeither in our own Penal Code or in the Indian Code of CriminalProcedue. It is in these terms:“ In exercising the discretion
given in the last preceding sub-section the Court shall haveregard to the welfare of the offender and of his family, and shallnot issue such warrant if in its opinion the levy of the distresswould be more injurious to the offender or his family thanimprisonment. ’ ’ It appears to me that this sub-section is in directconflict with the policy of sub-sections (1) and (2). It seems to indicatethat the Court is to regard the levying of the fine or the carryingout of the sentence of imprisonment as alternatives. I do not seehow effect can be give to the language of the sub-section in anyother way. Section 313 of the Criminal Procedure Code, whichenables the Court to suspend the execution of the sentence ofimprisonment when it issues a warrant for the levying of a fineunder section 312, no doubt tells against this construction.
t
But we are dealing here with a highly penal enactment, inwhich the language of the Legislature itself has given rise to graveambiguity, and, in accordance with the ordinary rule for theinterpretation of such enactments (see Maxwell’s Interpretationof Statutes, 4th ed., 394; Craies on Statute Lata 426) the appellant is^entitled to the benefit of the doubt. The Legislature can. if itchooses, make its own meaning clear for the future. I would allowthe appeal, and direct the release from seizure of. the appellant’sproperty.
Ennis J.—I agree.j>E Sampayo J.—I agree.
Appeal allowed.
lots.
Wood
Rbstobt C.J.
Sehockmanv. Balctya