(MAJOR Court CONFIRMATION)

SUDAN GOVENMENNT v. MOHAMED ELDAW SAEEM

AC-CP-84-1965

Principles

·  Criminal law-Whipping –Penal Code, s,  77-Does not empower Major or minor Court to pass sentence of whipping

·  Criminal Procedure-juvenile offenders-Code of Criminal Procedure s, 15-Empoweers magistrates, courts to try any offence except murder when offender is under 16 years.

Accused 15 years of age was convicted by Major Court under Penal Code, s,  318 and sentence to be whipped under Penal Code, s,  77.
Held: (i) Major Court has no power to pass sentence of whipping under Penal Code, s,  77 which is applicable only to courts of magistrates of 1st or 2nd class.

(ii) as the accused is under 16 years of age and the offence is not punishable by death, the proceedings are quashed and the accused should be tried by a magistrates Court under Code of Criminal Procedure ,s, 15.

Judgment

El  Rayah El Min J. March 9.1965:- On perusing the record , it appeared to me that the trial Court was wrong in passing a sentence of whipping under Sudan Penal Code, s,  77.

This section reads as follows:

“A sentence of whipping not exceeding twenty-five strokes may be passed by the court of  a magistrate of the first or second class whether trying a case summarily jor otherwise on any male offender, who in the opinion of the Court is less that twenty-one years of age, in lieu of any other punishment to which he might be sentenced for any offence not punishable with death. 

In this section the law empowers a Court of the 1st or 2nd class trying a case summarily or otherwise to pass a sentence of whipping

And it does not give power to a major or minor Court to pass such a sentence.

If the circumstances of the case justify passing such a sentence as in this case, then the proper course to follow is to deal with the case under Code of Criminal Procedure’s, 15.

Therefore , I quash the proceedings and order retrial by a magistrate’s Court.

Proceedings are returned herewith for necessary action.