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1966 DIGILAW 3 (SC)

Domingos Caetano Abreu v. State

1966-01-05

ALVARO DIAS, R.S.BINDRA, V.S.JETLEY

body1966
Judgement V. S. JETLEY, J.C. : The appellant was convicted under S. 219 of the Portuguese Penal Code (fabrication of documents) and sentenced to 5 months' of imprisonment and 5 months' of fine at the rate of Rs. 5 per day. The appellant filed an appeal before the Tribunal de Relacao against this conviction. The 'Relacao' dismissed the appeal on merits but gave the appellant the benefit of the amnesty order dated 12th April 1962 published in the Government Gazette dated 23rd April 1962. The operative part of their decision translated into English reads as under: "In the result, we agree to dismiss the appeal and to uphold the judgment impugned and by making applicable to the appellants the provisions of the proclamation No. 25, published in the Govt. Gazette of 23-4-1962 and of the order of 19-7-1962, we declare as pardoned the punishments awarded to the appellants and order them to pay the minimum of "imposto de justica" to this Court." This decision refers to an order dated 19th July 1962 which clarifies the earlier amnesty order dated 12th April 1962. 2. The appellant moved the learned Commarca Judge with a prayer that the effect of the decision of the 'Relacao' is that the appellant is not liable to pay 5 months' of fine at the rate of Rs. 5 per day. The learned Judge came to the conclusion that the decision of the 'Relacao' based on the amnesty order has reference only to the punishment of imprisonment and not to the fine and, therefore, the prayer of the appellant was not accepted. The appellant felt aggrieved by this view and hence the present appeal. 3. The short question for our consideration is whether the view taken by the learned Judge is correct and, for this purpose, it is necessary to consider the implications of the amnesty order dated 12th April 1962 as clarified by the subsequent order of the Lt. Governor dated 19th July 1962. 4. The order dated 12th April 1962 in so far as it is material for the present purpose postulates that sentences of all prisoners who have to serve 6 months or less shall be remitted. The order dated 19th July 1962 provides: "The pardon granted by proclamation XXV dated the 12th April, 1962 is applicable to all persons punished or liable to be punished for periods of imprisonment mentioned in the said order. The order dated 19th July 1962 provides: "The pardon granted by proclamation XXV dated the 12th April, 1962 is applicable to all persons punished or liable to be punished for periods of imprisonment mentioned in the said order. The period of imprisonment to be reduced according to the said Proclamation shall be calculated in proportion to the entire term of imprisonment awarded and not on the unserved period of imprisonment." 5. It will be seen from the order dated 19th July 1962 that it has reference to the punishment or sentence of imprisonment and not to the sentence of fine. The earlier order also seems to support this view. If these orders are to apply to the sentence of fine for the present purpose, it is possible to conceive of consequences which the authorities may not have contemplated. 6. Learned counsel for the petitioner has argued that the use of the expression "punishments" in plural in the decision of the 'Relacao' contemplates 5 months of imprisonment and also 5 months of fine at the rate of Rs. 5 per day. This argument seems to be devoid of substance. The expression "punishments" appears to have reference to punishment of more than one appellant, whose appeal the 'Relacao' was construing. It may be added that the 'Relacao' was concerned with construing the orders as they had dismissed the appeal on merits. We do not find anything in that decision to indicate that apart from 5 months of imprisonment, 5 months of fine at the rate of Rs. 5 per day was also pardoned. The 'Relacao' could not do what the amnesty order did not authorise them to do. 7. Learned Government Pleader for the State has urged that the view taken by the learned Comarca Judge is correct. This view commends to reason and we accept it. The appeal is devoid of force and accordingly it is dismissed. 8. The record of the case may be sent back to the learned Comarca Judge for taking necessary action. 9. ALVARO DIAS, A. J. C. : I agree. 10. R. S. BINDRA, A. J. C.: I agree. Appeal dismissed.