The Police Officer Dondra V. Baban

1923.

Present: Jayewardene A.J.

THE POLICE OFFICER, DONDRA, v. BABAN.

 410-P. C. Matara, 28,011.

Punishment-Plea of not guilty-Accused not to be punished more severely because he claimed to be tried.

An accused, who pleads not guilty and claims to be tried, is not to be punished when found guilty more severely on that account, than a co-accused who has pleaded guilty.

Where an appeal lies on a matter of law only, the certificate that the matter of law is a fit question for adjudication should refer specifically to the point of law certified.

THE facts are set out in the judgment.

No appearance.

August 22, 1923. JAYEWARDENE A.J.-

In this case the appellant has been convicted under the Gaming Ordinance and sentenced to pay a fine of Rs. 6. He appeals on a point of law : That the Police Magistrate who fined his co-accused who pleaded guilty Rs. 3 was not justified in fining him Rs. 6 because he pleaded not guilty and claimed to be tried. After the petition of appeal raising this point was filed, the learned Magistrate gave his reasons for the conviction and sentence, and dealing with the objection he says :-

" Counsel for the defence, however, questions my right to impose varying sentences in the case of the same offence. My only answer to that is that it is a practice universally followed, and I think, very rightly followed for a judge to regard a frank and open plea of guilt (when not made boastfully) as a justification for treating the accused with somewhat less severity. A man who aggravates his original offence by putting forward a vexatious and frivolous defence cannot, I think, claim as a right from the Court the same sentence as has been imposed on those who admitted their guilt."

There is a great deal of truth and force in what the Magistrate says, but the practice is one which has often been condemned, and, if I may say so, rightly condemned by this Court. It holds out a strong temptation to innocent persons to plead guilty. Thus in Seyatuwa v. Appuwa [1 (1896) 2 N. L. R. 212.] five people were charged with unlawful

gaming, the first three accused pleaded guilty and were fined Rs. 5 each. The fourth and fifth accused pleaded not guilty and claimed to be tried. After trial, the Magistrate found them guilty and sentenced them to one month's rigorous imprisonment. Bonser C.J. reduced the sentences of imprisonment to fines of Rs. 5. He said:-

" If a sentence of Rs. 5 was considered sufficient punishment for the other men, it appears to me from the evidence that it is equally sufficient for the appellants. It would seem as if the Magistrate punished the appellants more severely because they claimed to be tried. I reduce the sentence to a fine of Rs. 5. A man ought not to be in a worse position because he claims to be tried."

In another gambling case (Belliate v Don Lewis [1 (1907) 1 Aserwatham's Rep. p. 2.] ) Wendt J. made the following observation :-

 " Again it is not an offence to plead not guilty when one is really guilty, and a person doing so cannot be punished more heavily than one who fully admits the charge or vice versa."

If the conviction of the accused is to be sustained, the fine should be reduced to Rs. 3.

I should like to draw attention to the way in which the point of law was certified by the proctor for the appellant. As this was a case in which the accused had been sentenced to a fine not exceeding Rs. 25, and no leave of the Court had been obtained, no appeal would lie except on a matter of law. When the appeal is on a matter of law, the petition must contain a statement of the matter of law and must bear a certificate by an advocate or proctor that such matter of law is a fit question for adjudication by the Supreme Court (section 340 (2) of the Criminal Procedure Code). The petition of appeal in this case contains seven grounds marked (a) to (g), and the matter of law is raised in paragraph (a). All th

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