A.L. Shiran Gooneratne J.

[1] The Accused-Appellant was charged on 4 counts, under the Penal Code and the Motor Traffic Act (as amended), in the Magistrates Court of Kandy, for causing the death of a motor cyclist. At the conclusion of the trial, the Appellant was found guilty on 3 counts and the following sentences were imposed.

1^st count, Section 298 of the Penal Code - 1year Rigorous Imprisonment with Rupees 1,500 fine with a default sentence of 6 months;

2^nd count, Sections 214 (1) read with Section 151(3) and 217 (2) of the Motor Traffic Act, (as amended) - Rupees 500 fine;

3^rd count, Section 214 (1) read with Section 149 (1), 217 (2) and 224 of the Motor Traffic Act, (as amended) - acquitted;

4^th count, Section 148 (1) read with Section 151 (3) and 224 of the Motor Traffic Act, (as amended) - Rupees 500 fine.

[2] Aggrieved by the said Judgment dated 31/07/2006, the Appellant appealed against the conviction and sentence to the Provincial High Court of the Central Province holden in Kandy (“the High Court”). After hearing the case and considering the submissions from both parties, the High Court, by judgment dated 05/01/2017, having affirmed the conviction, the learned High Court Judge was of the view that; “[t]he said sentence imposed on the Accused is not proportionate to the gravity of the negligent act committed by the accused,” and proceeded to vary the sentence as follows:

1^st count, 3 years Rigorous Imprisonment, Rupees 250,000 as compensation to be paid to PW2, with a default sentence of 3 years Rigorous Imprisonment;

2^nd count, remained unchanged;

3^rd count, acquittal set aside and a fine of Rupees 1,500 imposed;

4^th count, remained unchanged.

[3] Being aggrieved by the said Judgment, the Appellant made an application to the High Court seeking leave to appeal to the Supreme Court in terms of Section 9 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 (as amended).

[4] Having heard also considering the submissions by both parties, the High Court, by Order dated 11/08/2017, granted leave to appeal only on the sentence imposed by the High Court. In the circumstances, the conviction of the Accused-Appellant, of the offences as charged, stands affirmed.

[5] The position of the Accused-Appellant is that the learned High Court Judge has enhanced the punishment without affording the Appellant an opportunity to respond and/ or show cause why the punishment ought to be enhanced. The Counsel for the Appellant strongly contends that an enhanced sentence was imposed in the absence of an application by the State to do so. It is also contended that the learned High Court Judge did not consider sentencing guidelines prior to enhancing the sentence.

[6] It is observed, that the Magistrate’s Court is empowered to try the Appellant on offences as charged and the above variation in sentence on count 1 and 3 by the High Court is within the exercise of judicial discretion of the sentencing judge.

[7] With leave of the High Court, the Counsel for the Accused-Appellant filed a motion dated 20/01/2017 seeking leave to appeal to the Supreme Court against the said Judgment dated 05/01/2017. In terms of Section 9 of the High Court of the Provinces (Special Provisions) Act No. 19 of 1990 (as amended), the High Court can grant leave to appeal to the Supreme Court, ex mere moto or at the instance of any aggrieved party to such matter or proceedings. In support of the said motion, the Court permitted the Accused-Appellant to file written submissions, and accordingly written submissions dated 08/08/2017 was filed of record. Given the opportunity to show cause, the Accused-Appellant did not identify any issue of law ought to be considered by the High Court nor contended harshness or any other mitigating factor associated with the said enhanced sentence. An application to refer a point of law must plead reasons why that point should be considered by the High Court. Section 322(1) of the Code of Criminal Procedure Act makes it imperative t