[1938] EACA 192

## **CRIMINAL REVISION**

## BEFORE WEBB AND HAYDEN J. J.

## REX, Prosecutor

## MOTIBHAI PATEL, Accused

Cr. Rev. Case No. 302 of 1937

Jurisdiction of subordinate courts—Sentence—Criminal Procedure Code, sections 5 and 7 and First Schedule-Native Produce and Inspection Rules, 1936, r. 8-Crop Production and Live Stock Ordinance, 1926.

The accused was charged before a magistrate of the third class with an offence under r. 8 of the Native Produce and Inspection Rules, 1936, made under section 4 of the Crop Production and Live Stock Ordinance, 1926. Section 5 of that Ordinance provides that "any person who commits a breach of any rule made under the Ordinance . . . shall be liable on conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding Sh. 500 or to both and shall also be liable to confiscation of any crops or live stock in respect of which the breach was committed". The magistrate held that he had no jurisdiction to try the offence on the ground that the Ordinance does not specify by what Courts offences under it are triable and that section 5 (2) of the Criminal Procedure Code gave him no jurisdiction since the relevant provision in the First Schedule thereto makes no mention of confiscation or forfeiture.

- Held (1-11-37).—That the second column of the First Schedule to the Criminal Procedure Code does not contain an exhaustive list of all the possible<br>punishments mentioned in section 24 of the Penal Code some one or more pullishments mentioned in section 24 of the renal Code some one of more<br>of which may be imposed for a given offence but it creates as regards<br>"offences under other laws" a standard by which in the absence of express"<br>provi by imprisonment, while if the offence is punishable by fine only it is triable by any Court. - Held further.-That the periods mentioned in the second column of the First Schedule to the Criminal Procedure Code do not affect the question of the sentence which the court can legally impose. As the maximum sentence of imprisonment which could have been imposed by any court in the present<br>case is less than one year, the case was triable by a Subordinate Court of the Third Class although the sentence that such court could in fact legally impose would be limited by section 7 of the Criminal Procedure Code,<br>and the fact that confiscation of the crops or live stock in respect of which the offence was committed could also be ordered is immaterial.

Trivedi for the accused.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—This is an application in Revision from the Subordinate Court of the third class at Embu. The accused, an Indian, was charged with an offence under rule 8 of the Native Produce and Inspection Rules, 1936, made under section 4 of the Crop Production

v.

and Live Stock Ordinance, 1926. Section 5 of that Ordinance, which is the penalty section, provides that "any person who commits a breach of any rule made under the Ordinance... shall be liable on conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding Sh. 500, or to both, and shall also be liable to confiscation of any crops or live stock in respect of which the breach was committed". The magistrate held that he had not jurisdiction to try the offence.

The Ordinance does not mention by what Court offences under it are triable, and the question therefore turns upon the construction of the general rule laid down by the Criminal Procedure Code. Section 5 (2) provides: "Where no Court is so mentioned (i.e. in the law creating the offence) it may, subject to the other provisions of this Code, be tried by the Supreme Court, or by any Subordinate Court by which such offence is shown in the fifth column of the First Schedule to be triable". The First Schedule sets out in tabular form, first, the various offences dealt with by the Penal Code, giving in the first column the section prescribing the penalty, then a short description of the offence, whether arrest may be made without warrant or not, the amount of imprisonment that may be awarded (with a note that by section 26 (3) of the Penal Code a person may be sentenced to a fine in addition to or instead of imprisonment), and in the fifth column, the Court (in addition to the Supreme Court) by which the offence is triable when the accused is a non-native; then "Offences under other laws" are dealt with, and here the "offences" are classified, not by description, which manifestly would be impossible, but by being divided into categories according as the offence is "punishable with imprisonment for three years or upwards but less than seven", "with imprisonment for one year or upwards, but less than three", and "punishable with imprisonment for less than one year, or with fine only". Offences falling in the first category are triable by Subordinate Court of the first class, those in the second category by Courts of the first or second class, and those in the third category, which is that with which the present case is concerned, by any magistrate.

The argument for the accused, to which the magistrate acceded, is that as the words used in the classification of offences do not include confiscation, which forms part of the possible penalty in the present case, therefore the offence is not triable by any Subordinate Court.

In our judgment this is wrong: the second column of the Schedule is not intended, and does not pretend, to contain an exhaustive list of all the possible punishments mentioned in section 24 of the Penal Code, some one or more of which may be imposed for a given offence, but it creates, as regards "Offences under other laws", a standard by which, in the absence of express provision in the law creating the offence, it may be ascertained by what Court the offence is triable, and that standard is the possible maximum sentence of imprisonment that might be imposed if the offence in punishable by imprisonment, while, if the offence is punishable by fine only, it is triable by any Court. Thus, if an offence is punishable by imprisonment up to three years the case is not within the jurisdiction of a Subordinate Court of the second class even though it may be obvious

that in the particular circumstances justice would be amply satisfied by the imposition of a very small fine, or by simply ordering the defendant to give security to keep the peace. In fact section 7 of the Criminal Procedure Code limits the sentences of imprisonment that may be passed upon non-natives to two years imprisonment in the case of a Court of the first class and to six months in the case of a Court of the second class, so that it is clear that the periods mentioned in the second column of the Schedule 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. Similarly by section 206 it is the possible maximum sentence of imprisonment which is made the standard to determine whether a Subordinate Court can deal with a charge against a European. In our judgment, therefore, as the maximum sentence of imprisonment that could be imposed by any Court in the present case is less than one year, the case was triable by a Subordinate Court of the third class, although the sentence that such Court could in fact legally impose would be limited by section 7, and the fact that confiscation of the crops or live stock in respect of which the offence was committed could also be ordered is immaterial.

The decision of the magistrate dismissing the case is therefore reversed, and he is directed to hear and determine it according to law.