Kachcheri Mudaliyar V. Mohamadu

[FULL BENCH.]

Present : Bertram C.J. and Ennis and De Sampayo J J.

KACHCHERI MUDALIYAR v. MOHOMADU.

1,002-P. C. Anuradhapura, 48,906.

Attempt to commit an offence-Limitation of s. 490 of the Penal Code- The English and Roman-Dutch Criminal law in Ceylon.

An attempt to commit an offence not punishable under the Ceylon Penal Code is itself not an offence, except when the particular enactment creating the offence makes such attempt punishable.

The Ceylon Penal Code abolished not only the law administered in this Colony known as " the Criminal law of the United Provinces " or as " the Roman-Dutch law, " but also the English criminal law, which, to a certain extent, had been imported into the jurisprudence of this Colony.

THE facts are set out in the judgment.

Arulanandan, for appellant.-The accused had not crossed the boundary with the bags of paddy, and hence he cannot be convicted of transporting the paddy into the Central Province. Granting

argumenti causa, that the facts proved in the case constitute an attempt to transport the paddy into the Central Province, such an attempt is not punishable under our law. Section 490 of the Penal Code does not help the prosecution, for it is expressly limited to offences punishable under the Code. The breach of the regulations made by the Food Controller is not an offence under the Penal Code, nor can the English law come to the rescue of the prosecution, for the English criminal law was never introduced into Ceylon. If the decision of the Full Court in Regina v. Mendis [1 (1883) 5 S. C. C. 186.] meant to hold that the English criminal law prevails in Ceylon, that view is wrong. The following qualification of Chief Justice Burnside is worthy of notice: " And although it may be that no direct expression of the Sovereign's will or express legislation can be found declaring English criminal law in force . . . . "

On the other hand, both the Proclamation of September 23, 1799, and Ordinance No. 5 of 1835 expressly declare the Roman-Dutch criminal law as the law in force in Ceylon. The Penal Code abolished the Roman-Dutch criminal law, and, therefore, the only criminal law in force in Ceylon is the Penal Code., The case of Andris v. Salman [2(1889) 9 S. C. C. 20.] is no authority, as it merely follows the case of Regina v. Mendis. [1 (1883) 5 S. C. C.186.]

Garvin, S.-G. (with him Jansz, C.C.), for the Crown.-Before the passing of the Ceylon Penal Code, it was held by the Collective Court in Regina v. Mendis [1 (1883) 5 S. C. C.186.] that much of the English criminal law was in force in this Colony. The Penal Code, while it expressly abolished the Criminal law known as the Criminal law of the United Provinces or as the Roman-Dutch law, did not make any mention of the English criminal law. Therefore, on the principle expressio unius exclusio alterius, the Legislature must have intended to retain the English criminal law. After the passing of the Penal Code, Clarence J. held that it did not abolish the English criminal law. Andris v. Salman [2(1889) 9 S. C. C. 20.]. It was never clearly understood how much of the English law had been introduced into the Colony.

Cur. adv. vult.

February 3, 1920. BERTRAM C.J.-

This is a case which has been reserved for the consideration of the Full Court on a point of some importance, namely, the question whether by the law of this Colony, independently of section 490 of the Penal Code, an attempt to commit an offence is itself an offence. The question arose in this way. The accused was prosecuted for the breach of an order made by the Food Controller in pursuance of regulations made by the Governor by virtue of an Order of the King in Council promulgated in view of the circumstances of the recent war. I may remark incidentally that, in order to

enable the Court to deal with this offence, it is necessary for us to refer to publications only accessible in various numbers of

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