[1938] EACA 188

## **CRIMINAL REVISION**

BEFORE SIR JOSEPH SHERIDAN, C. J. AND THACKER, J.

## REX THROUGH G. N. HOLYOAKE, Prosecutor

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## OKADO s/o OMWAYO, Accused

## Cr. Rev. Case No. 75 of 1938

Corporal punishment—Sentence—Jurisdiction of Subordinate Court of third class—Criminal Law—Criminal Procedure Code, section 10 $(3)$ —Penal Code, sections 27 $(3)$ , 32 and 33.

Accused, a juvenile, was convicted by a Subordinate Court of the third class of theft of a mortar pan contra section 252 of the Penal Code, and sentenced to a whipping of three strokes with a light cane.

Held (14-7-38).—That a Subordinate Court of the Third Class has jurisdiction<br>to impose a sentence of corporal punishment under section 27 (3) of the Penal Code. (Conviction and sentence affirmed.)

Accused absent, unrepresented.

Dennison, Acting Solicitor General, for the Crown.

JUDGMENT.—The question for consideration in this case is whether a Third Class Magistrate has jurisdiction to award a sentence of corporal punishment. In *Crown v. Anael Sowene and Another*, Cr. Rev. Case No. 27 of 1938, it was decided by this Court that a Third Class Magistrate had no power to award corporal punishment. The order passed in that case in so far as it is material reads: "The file in this case was placed before the Attorney General before the revisional order was made, who was of the opinion that a Third Class Magistrate was not empowered to award a sentence of corporal punishment in the case of a male person under sixteen who is convicted of an offence for which he is liable to imprisonment and for which were it not for this particular provision, corporal punishment would not have been imposed. This section does not relate to the powers exerciseable by individual Subordinate Courts, for such power one has to refer to section 10 of the Criminal Procedure Code as section 10 (3) limits the power of such Third Class Court to the passing of sentences of imprisonment for a term not exceeding six months or a fine not exceeding £20 or both". It having been brought to our notice that this decision was in conflict not only with a previously expressed view of the Attorney General but of a view acted upon by many Judges of this Court, which fact was apparently not put before the learned revising Judge in the case referred to, it was considered that the point should be set down for argument when a suitable case arose. Accordingly the point was argued in Crown v. Okado $s/o$ Omwaya, Cr. Rev. Case No. 75 of 1938. The learned Acting Solicitor General, on behalf of the learned Attorney General, submitted for our consideration that the interpretaiton invariably accepted by this Court prior to Anael Sowene's case should be followed and it appears to us that there are strong reasons for our doing so, if only for the number of Judges of this Court who in the past have accepted that view. In a matter of this kind.

it is most desirable that there should be a uniform view and we feel sure that had the learned Judge in Anael Sowene's case been aware that a particular interpretation had been acted upon by different Judgs for years, he would have felt himself bound by that interpretation. As the learned Acting Solicitor General has pointed out if the meaning of section 27 (3) of the Penal Code is to be read restrictively, a similar restrictive meaning must be given to sections 32 and 33 referring to security for keeping the peace and security for coming up for judgment. There is no mention in the Criminal Procedure Code under Part II dealing with Powers of Courts of Third Class Courts having these powers and yet the language used in sections 32 and 33 is not of a limiting character as regards the Court competent to exercise those powers. Then again some weight should be given to the unrestricted language appearing in a section of an Ordinance establishing a Code of Criminal Law. We also find that this Court (Webb and Hayden JJ.) have in the case of Rex. v. Motibhai Patel (reported ante p. 47) decided that a Third Class Magistrate's powers are not limited to sentences of imprisonment In that case the question was whether under The and fine. Crop Production and Live Stock Ordinance, 1926, it not being mentioned in the Ordinance by what Court offences were triable, a Third Class Court had jurisdiction to try cases. It was argued that there was no jurisdiction on the ground that the penalties included the confiscation of crops or live stock. This Court in deciding that jurisdiction existed held that "the periods mentioned in the second column of the Schedule (the First Schedule to the Criminal Procedure Code) do not affect the question of the sentence which the Court can legally impose but merely provide a standard based on the possible maximum sentence of imprisonment that could be imposed by some Court, by which to determine which Court has jurisdiction to try the case", and later in the Judgment: "the fact that confiscation of the crops or live stock in respect of which the offence was committed could also be ordered is immaterial". This case went to appeal when the Judgment of this Court was upheld. $\mathbf{S}$ o here we have a recognition by this Court and the Court of Appeal that a Third Class Court, though not specifically mentioned under an Ordinance, may award a penalty of confiscation. This negatives the view that the powers of a Third Class Court are limited to those set out in section 10 (3) of the Criminal Procedure Code. But what weighs with us for the most part is that the interpretation contended for is not unreasonable and has as we have pointed out been accepted in the past. We, therefore, hold that a Third Class Magistrate is vested with the power of corporal punishment set out in section 27 (3) of the Penal Code.