1941   Present :Keuneman. J

THIEDEMAN v. GEORGE.

521-M. C. Colombo, 22,003.

Personating-State Council election-Offence, a cognizable.' one under (State Council Elections) Order in Council-Penal Code, s. 169F.

Section 169F of the Penal Code is not repealed in regard to State Council Elections by section 51 of the (State Council Elections) Order in Council, 1931, as amended in 1934 and 1935, which makes personating a cognizable offence.

APPEAL from a conviction by the Magistrate of Colombo.

J. E. M. Obeyesekere (with him M. M. I. Kariapper), for accused, appellant.

H. W. R. Weerasuriya, C.C., for complainant, respondent.

Cur. adv. vult.

October 2, 1941. KEUNEMAN J;

The accused in this case was charged with applying at an election held under the Ceylon Order in Council, 1931 (State Council Elections) for a ballot paper in the name of another person, viz., registered voter No. 5092, Irasingham Karthigesar, and thereby committing the offence of personation under section 169F of the Penal Code (Chapter 15). The accused was convicted, and fined Rs. 100, and now appeals.

In appeal, the point has been emphasized that the alleged personation took place at a State Council Election, and it was urged that under the Ceylon (State Council Elections) Order in Council of 1931, as amended in 1934 and 1935, personation is made a cognizable offence (see section 51), and that any one who commits the offence of personation is guilty of a corrupt practice, and is liable on conviction by a District: Court in the discretion of the Court to a fine of Rs. 500, or to imprisonment of either description for a period not exceeding six months or to bath such fine and imprisonment. Further, by conviction such person becomes incapable for seven years from the date of his conviction of being registered as a voter, of voting at any election, or of being elected as a member, and if at that date he has been elected as a member, his election is vacated from the date of the conviction. Further, a prosecution cannot be instituted for a corrupt practice without the sanction of the Attorney General. (See section 55.) .

It is now contended that the conviction is bad on two grounds (a) that the prosecution was before a Magistrate, and not before a District Judge, and (b) that no sanction has been obtained from the Attorney-General.

For the Crown it was urged that the charge was brought under section 169F of the Penal Code, and that an offence under that section is properly tribal 111 the Magistrate's Court and that no sanction from the Attorney-general is needed before prosecution.

Counsel for the appellant argued that section 169F of the Penal Code must be regarded as superseded and repealed, so far as it relates to State Council Elections, by the enactment of sections 51 and 55 of the Order in

Council. He relies on Michell v. Brown[ Ellis &. Ellis 267, 120 E. R. 909]. There Lord Campbell C.J. said, "If a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the procedure, &c., giving an appeal where there was no appeal before, we think the prosecutor must proceed for the offence under the later statute. If the later statute expressly altered the quality of the offence, as by making it a misdemean our instead of a felony or a felony instead of a misdemeanor, the offence could not be proceeded for under the earlier statute: and the same consequence seems to follow from altering the procedure and the punishment. The later enactment operates by way of substitution. and not cumulatively giving an option to the prosecutor or the Magistrate ".

This was followed in Whitehead v. Smithers  [L. R. 1876. 17, 2 C. P. 553.] " where it was further held that the whole frame of the later Act showed an intention to repeal the earlier Act. See also Fortescue v. The Vestry of St. Matthew, Bethal Green [L. R. 1891, 2 Q. B. 170.].

Counsel