Rex v Fernandes (Criminal Appeal No. 54 of 1943) [1943] EACA 57 (1 January 1943)

# APPELLATE CRIMINAL

### BEFORE THACKER, J.

## REX. Respondent

# I. B. FERNANDES. Appellant Criminal Appeal No. 54 of 1943

Criminal Procedure-Criminal Procedure Code, Section 142-Proof of previous conviction—Traffic Ordinance. 1928. Section 29 (f)—Sentence in default ultra vires.

The facts sufficiently appear from the judgment reported.

Held (22-4-43).-(1) In order to prove a previous conviction against an accused, one or other of the provisions of section 142 of the Criminal Procedure Code must be complied with, unless the accused admits such previous conviction or convictions as is or are alleged by the prosecution.

(2) The sentence passed in default of payment of the fine, namely 4 months' imprisonment with hard labour, was ultra vires, the maximum allowance under the relevant section being 3 months' imprisonment with hard labour.

Appeal against sentence allowed. Fine of Sh. 400 or imprisonment with hard labour for four months set aside and a fine of Sh. 200 and in default two months' imprisonment with hard labour substituted.

### Köhli for appellant.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.-The record does not give a clear picture of the proceedings in the lower Court. I am informed by Mr. Kohli for the appellant that the apellant was present in the lower Court and that he (Mr. Kohli) represented him.

The appellant was convicted of carrying excess passengers on a public service vehicle contra Section 29 (f) of the Traffic Ordinance, 1928. The accused pleaded guilty to the charge and it appears that the police then put in a file of a previous case in which it is said the accused is shown to have had a previous conviction. No evidence of identity was given, nor, so I am informed, was the accused or his advocate asked if he admitted a previous conviction. It is true that Mr. Kohli made no objection to the faulty procedure which was adopted, but this cannot in my judgment relieve the prosecution from the necessity of observing the provisions of Section 142 of the C. P. C. which lays down the procedure for proving previous convictions. It would have been in order, of course, if the accused had been asked if he admitted the previous conviction and had admitted it, but this course does not appear to have been followed.

It is admitted by the respondent that the default sentence of four months' imprisonment was ultra vires. The section under which the accused was charged allows of a maximum of three months' imprisonment.

The procedure of proving the previous conviction was incorrect and the sentence must be set aside.

I regard the offence of which the accused was convicted as not trivial and I think an adequate deterrent sentence is necessary, in order to attempt to prevent the accidents which happen from overloading vehicles. I shall treat the appellant as if he had no previous convictions and I impose a sentence of Sh. 200 and in default two months' imprisonment with hard labour.

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