1951 Present: Gratiaen J.

IN RE VELIN et al.

 In revision under Section 356 of Criminal Procedure. Code

M. C. Matugama, 11,984; M. C. Balangoda, 24,590; M. C. Avissawella, 53,121; M. C. Kalutara, 10,325; M. C. Gampaha, 179; M. C. Colombo, 6,203; M. M. C. Colombo, 81,462.

Sentence-Payment of Fines (Courts of Summary Jurisdiction) Ordinance, No. 49 of 1938-Purposes for which it was designed-Sentence of fine in first instance- Duties of sentencing Court-Sections 2, 3, 4, 6 and 8-Criminal Procedure Code, s. 312 (4) (c).

Where an offender is sentenced only to pay a fine, a Court of summary jurisdiction must comply with the following imperative provisions of the Payment of fines (Courts of Summary Jurisdiction) Ordinance, No. 49 of 1938: -

(a) The means of the offender must, among other considerations, be taken into account in fixing the amount of the fine (Section 2).

(b) Unless special circumstances (the nature of which must be recorded in the proceedings) are proved or admitted to exist, at least seven days time must be given for the payment of the fine the grant of further extensions of time is permissible (Section 3); an order, therefore, that a fine should be paid forthwith, except in one or other of the grounds specified in Section 3, is not authorised by-law.

(c) Where time for the payment of a fine is granted as required by Section 2, it is illegal on that occasion to impose a term of imprisonment in default of payment (Section 4); there are a few special exceptions to this general rule, but if they are considered to apply, the Magistrate's decision to that effect must be based on reliable material and must be recorded in the proceedings, together with the reasons for such decision-proviso to Section 4 (1), and Section 4 (2).

(d) Generally, and subject to these few exceptions, a Magistrate, after the date of conviction, is precluded by law from imposing a term of imprisonment on a defaulter unless, on an occasion subsequent to the conviction, there has been an inquiry as to the defaulter's mean Section 4 (3); if, after such inquiry, the Magistrate is satisfied that the defaulter does not possess the means to pay the fine, there is no jurisdiction to commit him to prison for default.

(e) In any event it is not obligatory on a Magistrate to commit a defaulter to prison an order for detention in the precincts of the Court is permissible, and may in some cases be quite appropriate-Section C.

(f) It is illegal to commit a defaulter under 21 years of age to prison unless the conditions laid down by Sections 8 have been satisfied.

Held further, that the practice of ordering " double security " as a condition of the granting of time to pay a fine is unwarranted. The provisions of Section 312 (4) (c) of the Criminal Procedure Code must now be construed as having been repealed to the extent to which they are inconsistent with the explicit provisions of the Payment of Fines Ordinance of 1938.

ORDERS made in revision under Section 356 of the Criminal Procedure Code.

T. S. Fernando, Crown Counsel, for the Attorney-General, on notice by Court.

Cur. adv. vult.

April 25, 1951. GRATIAEN J.-

Statistics recently furnished by the Prison authorities to the Criminal Courts Commission, of which I am a member, disclosed that no less than 6,100 (including 845 youthful offenders) out of 12,068 convicted persons admitted to jail during the year 1950 had in the first instance been sentenced only to pay fines, but had, owing to default of payment and for no other reason, been sentenced automatically to terms of imprisonment. The total number of prison inmates belonging to this category on April 17, 1951, was as high as 171. The provisions of the Payment of Fines (Courts of Summary Jurisdiction) Ordinance, No. 49 of 1938, are specially designed to prevent such a lamentable state of affairs. The figures disclosed led me to doubt whether the beneficial provisions of this O