[1949] EACA 27

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

REX through INDER SEN, Respondent (Original Prosecutor)

y.

## RAMLUBHAYA s/o MEHAR SINGH, Appellant (Original Accused) Criminal Appeal No. 1 of 1949

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Practice and Procedure—Appellant convicted of criminal trespass, section 303 (1), Penal Code—Magistrate instead of passing sentence bound over appellant to come up for judgment when called upon, section 34, Penal Code-Whether right of appeal conferred by section 347 (1), Criminal Procedure Code—section 348, id.—Meaning of "order" in section 349, id.

The appellant was convicted of criminal trespass contrary to section 303 (1) of the Penal Code in the Resident Magistrate's Court at Nairobi and the Magistrate, instead of passing sentence, made an order under section 34 of the Penal Code binding over the appellant in the sum of Sh. 1,000 to come up for judgment when called upon within a period of two years, and further ordered him to pay costs.

His appeal to the Supreme Court against conviction and the order under section 34 was dismissed on the ground that no appeal lay. The appellant then appealed to the Court of Appeal.

- Held (19-2-49).—(1) That the appellant had been "convicted of an offence", a prerequisite to<br>the making of an order under section 34 of the Penal Code, and was a "person convicted<br>on a trial held by a subordinate Court" an restrictive provisions of section 348 of the Criminal Procedure Code. - (2) Semble: That "order" in section 349 of the Criminal Procedure Code does include and cover an order under section 34 of the Penal Code. - Order of Supreme Court dismissing appeal against conviction and order set aside and the case remitted for determination of the appeal. - Sohoni, 14 Ed. (1941), page 1104 para. 25 and page 777 para. 5 referred to. Mayandi Nadar v. Pala Kudumban, 58 I. L. R. (1935) (Mad.) 517 referred to and cited. Maxwell: Interpretation of Statutes, 8th Ed. (1937) p. 12 cited.

D. N. Khanna for the Appellant. $\mathcal{L}$

Nazareth for the Crown.

JUDGMENT (delivered by BOURKE, J.).—The appellant was charged on the complaint of a private prosecutor before the Subordinate Court of the First Class at Nairobi and was convicted of the offence of Criminal Trespass contrary to section 303 (1) of the Penal Code. The Magistrate acted under section 34 of the Penal Code and "instead of passing sentence" made an order binding over the appellant in the sum of Sh. 1,000 to come up for sentence when called upon within a period of two years. The appellant was also ordered to pay the costs of the complainant assessed at Sh. 400 and in default of such payment, or failure to recover by distress, to undergo 21 days' simple imprisonment.

The appellant appealed to the Supreme Court against the conviction and order for security. In the result it was held that as no sentence had been passed the appellant had no right of appeal under section 347 (1) of the Criminal Procedure Code and accordingly the appeal against conviction and the binding over order was dismissed. The appellant had also appealed by way of the same petition of appeal against the order for payment of costs; it was decided that in such matter he had a right of appeal under the provisions of sections 171 and 172 of the Criminal Procedure Code and the issue was held over for further agreement.

The question that arises for decision by this Court is whether section 347 (1) of the Criminal Procedure Code confers a right of appeal upon a person convicted. where, as in this case, no sentence has been passed but instead an order has been made for security to come up for sentence when called upon under section 34 of the Penal Code.

Section $347$ (1) reads as follows:

"Save as hereinafter provided, any person convicted on a trial held by any subordinate Court may appeal to the Supreme Court, and shall be so informed by the Magistrate at the time when sentence is passed."

The right of appeal so accorded is limited by the provisions of section 348 which it is as well to set out in full:

"348. (1) No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate Court, except as to the extent or legality of the sentence.

(2) No appeal shall be allowed in cases in which a subordinate Court has passed a sentence of imprisonment not exceeding one month only, or of a fine not exceeding five pounds only, or of corporal punishment only:

Provided that there shall be no appeal from a sentence of imprisonment passed by such Court in default of the payment of a fine, when no substantive sentence of imprisonment has also been passed:

Provided, however, that an appeal may be brought against any sentence referred to in this sub-section by which any two or more of the punishments therein mentioned are combined, but no sentence, which would not otherwise be liable to appeal, shall be appealable merely on the ground that the person convicted is ordered to find security to keep the peace."

It will be observed that an order made under section 34 of the Penal Code to provide security for coming up for judgment does not come within the exceptions laid down by the section just quoted, nor for that matter does an order under section 33 of the Penal Code to enter into a recognizance conditioned that the convicted person shall keep the peace and be of good behaviour for a time to be fixed by the Court, whether such order is made instead of or in addition to any other punishment to which the convicted person may be liable. The appellant puts forward the same argument that was urged before the lower Court. He contends that since he is a "person convicted on a trial held by a subordinate Court" that he is entitled to appeal against the conviction and the order because none of the exceptions to the right of appeal provided by section 348 affects his case. That submission was not accepted by the Court below on the construction that was given to section 347 (1) which appears from the following excerpt from the judgment:

"Now section 347 (1) of the Criminal Procedure Code provides that $a$ Magistrate shall 'when sentence is passed' inform the person convicted that he has a right of appeal to the Supreme Court. This is mandatory on a Magistrate who has passed a sentence not excepted from appeal by the provisions of section 348. It seems to us manifest that this mandatory provision cannot apply to a Magistrate who 'instead of passing sentence' has elected to adopt the alternative course open to him in section 34 of the Penal Code. Furthermore because of the mandatory words used in section 347 (1) of the Criminal Procedure Code we can only construe the section as meaning that an appeal only lies where a conviction is followed by a sentence, unless there is express provision by some other enactment."

It is quite plain that the section requires the Magistrate to inform the person he has tried, convicted and sentenced of his right of appeal at the time when sentence is passed. At such time this mandatory duty rests with the Magistrate: but where, as in this case, no sentence is passed, but instead an order is made under section 34 of the Penal Code, the Magistrate is not put under the obligation of informing the person convicted as to a right of appeal. But can it logically and validly be said that therefore, because in such instance the occasion for the discharge of such statutory obligation has not arisen, the person convicted has no right of appeal at all? The section, subject only to the restricting provisions of section 348, gives every person convicted at a trial held by a subordinate Court a right of appeal to the Supreme Court and upon the happening of a certain event, namely, the passing of sentence, the Magistrate must inform the convicted person of such right; if there be no occurrence of such event then no such duty falls upon the Magistrate, not because there is no right of appeal to inform about but because the section is silent as to the course to be taken by the Magistrate when no sentence is passed. In other words the language employed to impose a duty upon the Magistrate is consistent with the vesting of a right of appeal under the first part of the sub-section in a person convicted where no sentence has been passed but an order has been made as in the circumstances of this case.

The question under very similar legislation as to whether there was a right of appeal upon conviction followed by an order for security to come up for sentence when called upon has been the subject of several decisions by the Courts in India (see Sohoni, 14 Edition, 1941, at p. 1104 paragraph 25, and p. 777 paragraph 5), and there seems to have been a consensus of judicial opinion that there was such right. It is true that the Courts in India did not have to contend with the words that appear to have led the Court below to construe section 347 (1) as it did; but the cases are undoubtedly of interest when it comes to the constructions given to the same material words "any person convicted on a trial held by ... may appeal", which also appear in section 408 of the Indian Code of Criminal Procedure. Section 562 of the same Code, though considerably more elaborate, is the equivalent of section 34 of the Kenya Penal Code; it provides that the Court instead of sentencing the convicted person may direct that he be bound over to appear and receive sentence when called upon. In Mayandi Nadar v. Pala Kudumban. 58 I. L. R. (1935) (Mad.) 517, the Court (Curgenven and Cornish, J.) following three earlier decisions to which reference is made in the course of the judgment, held that an appeal did lie under section 408 from an order of a First Class Magistrate made under section 562. The following passage is taken from the judgment of the Court:

"... under section 408, any person 'convicted' on a trial held by a Magistrate of the First Class may appeal to the Court of the Session, subject to the qualifications as regards minimum sentence contained in sections 413 and 414. Section 562 provides that a first offender dealt with under its provisions must first be 'convicted'; and if the word 'convicted' is used in the same sense in that section and in section 408, there can be no escape from the conclusion that a person dealt with under section 562 has a right of appeal ... Altogether we think that if the word 'conviction' be consistently given its ordinary sense of an adjudication of guilt, the terms of the Code leave no doubt as to the answer to be given to the question raised."

We are content to call attention to the Indian cases, for the decision of this Court must rest upon the precise wording of the sections in the Kenya Code governing appeals from subordinate Courts. Learned counsel for the Crown has argued that there is provision only for appeal where there is a sentence following conviction and has referred to section 349 which provides that—"Every appeal shall be entered within thirty days of the date of the order or sentence appealed against". It is submitted that "order" for the purposes of that section means an order as to which a specific right of appeal is given, as for instance under sections

53 (2) and 132 of the Code. If an order such as that made in the present case is an order within section 349 then, it is asked, might not two periods of limitation arise, the first being 30 days from the date of the order and the second within 30 days of the passing of sentence in the event of the convicted person being called upon to receive judgment? Whatever may be the answer to that, there would seem to be no sufficient reason, giving words their ordinary meaning, for holding that "order" in section 349 cannot and does not include and cover an order made under section 34 of the Penal Code. Under section 354 (1) of the Criminal Procedure Code power is given to the appellate Court to dismiss an appeal and under paragraph $(b)$ of the sub-section particular powers are given in an appeal from an order that, apparently, is not consequent upon a conviction. Specific powers are also conferred under paragraph $(a)$ of the same sub-section in an appeal "from a conviction"; it is set forth as to what may be done as regards the "sentence", and there are no words covering an order made instead of passing sentence under section 34 of the Penal Code. But the appellate Court is empowered to reverse the finding of guilt and acquit; such a course in a case like the present would necessarily entail the setting aside of the order dependent upon the conviction, and it can hardly be said in the event of an acquittal that it is beyond the power of the Court of Appeal formally to set aside an order automatically rendered bad by the quashing of the conviction.

Looking at all the relevant sections we are unable to find any sufficient support for the argument that a right of appeal is only accorded where a conviction is followed by a sentence. It is undoubtedly strange that section $347$ (1) should not make it incumbent upon the Magistrate to inform the person convicted of a right of appeal where no sentence is passed but instead an order is made under section 34 of the Penal Code. It may be, though it seems unlikely, that such omission was intentional, or the draftsman may have overlooked the possibility of an order being made which though it comes within section 25 (8) of the Penal Code, nevertheless in view of the wording of section 34 does not constitute a sentence. However that may be, the words granting a right of appeal are clear, and in our opinion, for the reasons already given, section 347 (1) cannot be construed to mean that a right of appeal is dependent upon a conviction being followed by a sentence merely because the Magistrate is obliged to inform the person convicted of his right of appeal at the time when sentence, $\mathcal{L} \left( \mathcal{L} \right) = \mathcal{L} \left( \mathcal{L} \right)$ is passed.

Had the Legislature intended that there should only be a right of appeal where a semence followed conviction it would have been easy to give expression to such intention by adding the words "and sentenced" after the word "convicted" in the first line of section 347 (1). We are unable to discover any sufficient reason for reading such words into the sub-section; once a right of appeal is given one must be careful to see that that right is not whittled down in any way. The following quotation from Maxwell on the Interpretation of Statutes, 8th Edition (1937) p. 12, is in point:

"Nothing is to be added to or to be taken from a statute, unless there are similar adequate grounds to justify the inference that the Legislature intended something which it omitted to express. . We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within four corners of the Act itself.".

In the present case the appellant has been "convicted of an offence"-a prerequisite to the making of an order under section 34 of the Penal Code; he is "a person convicted on a trial held by a subordinate Court" and as such under section 347 (1) of the Criminal Procedure Code he has a right of appeal for his case does not come within the restrictive provisions of section 348.

The order of the lower Court dismissing that part of the appeal relating to the conviction of the appellant and the order requiring him to furnish security is set aside and the case remitted for the determination of the appeal in accordance with law.