Singer Manufacturing Co. V. Paul Perera

 

Present: Mr. Justice Wendt and Mr. Justice Wood Renton.

 

SINGER MANUFACTURING CO. v. PAUL PERERA

 

P. C., Hatton, 6,279.

 

    Appeals in criminal cases-Petition of appeal signed by proctor without proxy-Validity-Criminal Procedure Code, ss. 287, 336, 387, 338, 340 (1), 441.
 
    Where the complainant in a Police Court case appealed with the sanction of the Attorney-General from an acquittal of the accused on certain counts, and the petition of appeal was signed only by the proctor who appeared for the complainant in the Police Court, but who held no proxy from the complainant authorizing him to sign such petition of appeal,-
 
    Held (over-ruling the objection to the hearing of the appeal), that the petition of appeal was in order, and that the appellant was entitled to be heard.
 
WENDT J.-No proxy is required in a criminal case, and District Court proctors are qualified to sign petitions of appeal in criminal
 
APPEAL from an acquittal with the sanction of the Attorney-General. The petition of appeal was signed by the Proctor only, who held no proxy authorizing him to do so.
 
Counsel for the accused-respondent objected to the hearing of the appeal on the ground that the appeal was not properly before the Court, as the proctor had no authority to appeal.
 
Wendt J. reserved the question for consideration by two Judges.
 
H. J. C. Pereira, for the complainant, appellant.
 
A. St. V. Jayewardene, for the accused, respondent.

Cur. adv. vult.

October 13, 1908. WENDT J.-

 

The question reserved by me for the consideration of a Bench of two Judges was whether the petition of appeal of the complainant, being signed only by Mr. Liesching, a proctor of this Court, as proctor for the petitioner, was regular. While section 287 entitles every person accused before a Criminal Court to be defended by a " pleader," no similar right is conferred upon a complainant. In practice, however, complainants are often represented by a proctor, or an advocate instructed by a proctor. Subject to certain conditions as to amount of sentence and otherwise contained in sections 335, 336,   337,   the  right  of  appeal  to  the   Supreme   Court  is  given  by 

 

section  338  to  any  person   dissatisfied  with  any  judgment  or  final order pronounced by any Police Court or District Court in a criminal case or matter to which he is a party. Section 336 enacts that there shall be no appeal from an acquittal, except at the instance or with the written sanction of ,the Attorney-General. Section 340 (1) directs that every petition of appeal shall be signed by the appellant or his proctor. The present is an appeal sanctioned by the Attorney-General against the acquittal of the accused on the charge of criminal breach of trust in respect of two sums of Rs. 20 and Rs. 5 paid to him by one Tillekeratne. The appeal of the accused against his conviction on another charge tried at the same time has already been disposed of.

 

In objecting to the complainant's appeal, counsel for the accused cited The Queen v. Genis Appu,1 in which Bonser C.J., in sending back for the signature of the accused-appellant a petition of appeal signed only by a proctor, is reported to have said that as an accused was liable to have his punishment enhanced in appeal, the petition should have been signed by the accused, or else it should appear on the record that the proctor was specially authorized to sign it. From the later remarks of the learned Judge it would appear that he considered that the authority should be contained in a written proxy. The report does not state whether the proctor had appeared for the accused at the trial. On July 3, 1900, the day following the order in that case, the Registrar of this Court, apparently acting on the order of the Chief Justice, issued to all the Magistrates and District Judges the following circular: -

 

" I am directed

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