Khan v. Ariyadasa
1963Present: T. S. Fernando, J.K. A. M. KHAN and others, Appellants, and M. G. ARIYADASA,
S. G. 707-711 of 1962—M. G. Matara, 66552
Indictment—Unlawful assembly—Joinder of charges based on unlawful assemblywith charges based on existence of common intention—Validity—Judicialprecedents—Principle of stare decisis—Scope—Offence committed by one memberof an unlawful assembly—Nature of offence committed thereby—CriminalProcedure Code, ss. 152 (3), 180 (1) (2)—Penal Code, ss. 32, 67, 146.
Charges based on the existence of an unlawful assembly may be validly joinedin the same indictment with charges based on the existence of a commonintention as described in section 32 of the Penal Code.
The five appellants were charged under section 148 of the Penal Code with,having committed, as members of an unlawful assembly, the offences of house-trespass, rioting, and causing hurt. They were also charged with having com-mitted, in the course of the same transaction, the substantive offences ofhouse-trespass, wrongful confinement, and causing hurt.
Held, that there was no misjoinder of charges.
Don Marthdis v. The Queen (65 N. L. R. 19), not followed.
In regard to the principle of stare decisis, if a relevant authority or statutoryprovision is not mentioned in the judgment, the decision may be challenged.
Section 146 of the Penal Code creates an offence, but the punishment mustdepend on the offence of which the offender is by that section made guilty.Therefore the appropriate punishment section must be read with it.
The question whether jurisdiction has been properly assumed in terms ofsection 152 (3) of the Criminal Procedure Code must be judged on the facteand circumstances as known to the Magistrate at the time the question cameon to be decided by him and not by what may have happened at the trial ata point of time after he had decided th at question.
ApPEAL from a judgment of the Magistrate’s Court, Matara.
Colvin R. de Silva, with M. L. de Silva and A. E. Moomin, for the2nd and 4th accused-appellants.
E. Chitty, Q.C., with Prins Gunasekera, for the 3rd accused-appellant.5th accused-appellant in person.
Colvin R. de Silva, with D. R. Wijegoonewardene, for the 6th accused-appellant.
Ranganalhan, with G. D. C. Weerasinghe, for the complainant-respondent.
Cur. adv. wit.
2*R 10531 (6/63)
T. S. FSBNANIX), 3.—Khan v. Artyadasa
May 6, 1963. T. S. Fbrnasdo, J.—
The 1st to the 5th appellants (who were respectively the Sad to the
6th. accused at the trial) and another who was the 1st accused thereatstood their trial in the Magistrate’s Court of Matara on ten charges whichare set out briefly in the following paragraph.
All six accused were charged in the first eight charges as follows :—
being members of an unlawful assembly—punishable under
section 140 of the Penal Code ;
being members of the said unlawful assembly, committing house-
trespass by entering the house of one Ariyadasa—punishable
under section 434 read with section 146 of the said Code ;
being members of the said unlawful assembly, using force or violence
—punishable under section 144 of the said Code ;
being members of the said unlawful assembly, one or more members
of which caused hurt to certain persons—punishable under
section 314 read with section 146 of the said Code ;
committing house-trespass—punishable under section 434 of the
said Code ;
wrongfully confining the said Ariyadasa—punishable under section
333 of the said Code ;
wrongfully confining one Gomis—punishable under section 333 of
the said Code ;
voluntarily causing hurt to the said Ariyadasa—punishable under
section 314 of the said Code ;
Charge No. (9) was one framed against the 2nd, 3rd and 4th accused inrespect of hurt caused to the said Gomis—punishable under section 314,while charge No. (10) named the 2nd accused alone as having causedhurt to one Daisy, the wife of Ariyadasa—punishable under section315 of the said Code.
All ten charges save charge No. (3) were triable summarily. TheMagistrate, being also a District Judge, assumed jurisdiction in terms ofsection 152 (3) of the Criminal Procedure Code to try charge No. (3)summarily and, after trial held on all ten charges, he found the 2nd tothe 6th accused guilty on the first seven charges. He further found the2nd accused guilty on charge (8) and the 2nd and the 4th accused guiltyon charge (9). The 2nd accused was acquitted on charge (10). The1st accused was acquitted on charges (1) to (8) i.e., on all the chargesthat had been framed against him. Each of the appellants was sentencedto a term of 3 months’ rigorous imprisonment on each of the charges onwhich he was found guilty and convicted, the sentences being orderedto run concurrently.
The 1st accused was at the date of the commission of the offences theOfflcer-in-Cbarge of the Excise Station at Matara, while the 2nd accusedwas an Inspector of Excise and the 3rd to the 6th accused excise guards,
T. S. FERNANDO, J.—Khan v- Ariyadasa
all attached also to the Matara Excise Station. The case for the prose-cution 'which has been accepted by the learned Magistrate was that, sometwo days before the commission of the crimes alleged agaisnt these accusedpersons, the 6th accused had been assaulted by Ariyadasa, a bus driveremployed under the Ceylon Transport Board, for unseemly behaviour—and-the making of indecent gestures at his (Ariyadasa’s) wife, Daisy. TheMagistrate has found that this assault was the motive for a concertedattack on the day in question on Ariyadasa by the 2nd to the 6th accusedwho arrived in one party by car at Ariyadasa’s compound, entered hisverandah, kicked him, handcuffed him, forced him into the car, and thenforced also into the same car Ariyadasa’s brother, Gomis, a retired velvidane, who happened to come to his brother’s house on hearing thenoise of this disturbance. Prom his compound Ariyadasa and Gomiswere taken in the car to the Walgama excise station, thence to a houseand finally to the Matara hospital where an allegation was made by the2nd accused that Ariyadasa bad ganja on him at the time he was seized.The two men were thereafter released by the 2nd accused on hail, and theypromptly hurried to the Police Station and complained of the assaulton them.
Ariyadasa and Gomis were charged in the Magistrate’s Court by the2nd accused with the unlawful possession of ganja but, the 2nd accused(a material witness) being absent on the date of trial, the Magistrate,refusing an application for a postponement, acquitted the accused.No appeal was preferred by the prosecution against the acquittal.
At the trial in the present case the 1st accused relied on an alibi andpleaded that he was ignorant of any transaction in relation to Ariyadasa.The Magistrate has held that “ the evidence against the 1st accused wasunsatisfactory and insufficient to bring the charges home to him The2nd accused testified at the trial in the course of which he stated that,with the 3rd to the 6th accused, he set out on this day on a legitimateraid on receiving information against Gomis ; that he saw Gomis onthe road with a parcel; that Gomis seeing the Excise car passed the parcelon to Ariyadasa and that they both then began running along the road;that the Excise party had to chase these two men and arrest them withsome effort, but not before some force had to be used to secure theirarrest. The 3rd to the 6th accused gave no evidence. All six accusedpersons were defended by one counsel. The Magistrate rejected theevidence of the 2nd accused as being false.
In regard to the facts of the case I heard counsel for the appellantsas well as the 5th accused who appeared by himself, but I found it im-possible to reach a conclusion that there has been any wrong decisionon the facts affecting any one of these appellants. The case againstthe 2nd accused was indeed strengthened by the admission of a confes-sion of his guilt made by him to Mr. Samaraweera, at that time and eventoday the Minister of Local Government of this country. Quite apartfrom this circumstance, learned counsel who appeared for Ariyadasa haspointed out to me that the incidents detailed by the 2nd accused when
T. s. IMHilffiO, j.-~Khaa v. Atiyodaaa
he gave evidence were no* put to the j»oeem*fck>n^witoeeeeB, Conns,Ariyadasa and Daisy, at any stage of the prosecution ; on the other hand,the case for the defence as put to these witnesses while they were beingcross-examined was materially different. The appeals on the factemust fail.
Mr. De Silva advanced two matters of law as militating against theconvictions. They were—
that there has been in this case no proper assumption of jurisdiction,in terms of section 152 (3) of the Criminal Procedure Code ;
that there has been a misjoinder of chargee in that charges basedon the existence of an unlawful assembly have been joined withcharges framed relying on section 32 of the Penal Code.
Mr. Chitty supported objection (a), but in answer to me stated that hepreferred to say nothing in regard to objection (b).
In regard to (a), as I have pointed out already, all ten charges savecharge No. (3) were triable summarily. Charge No. (3) in spite of thefearsome name it carries—rioting—implies nothing more than that hurt ormischief has been committed by persons who were at the time membersof an unlawful assembly. Where both the offence of unlawful assemblyand that of causing hurt or committing mischief are summarily triable,it will be seen that charge No. (3) is not summarily triable only in a verynarrow and technical sense. In any event, the learned Magistrate wasof opinion that the offence which was the subject of this charge No. (3)could itself be tried summarily. He has set out his reasons. They werethat (1) the facts were simple, (2) there were no complicated questionsof law, and (3) speedy and expeditious disposal of the case was desirable.The question whether jurisdiction has been properly assumed in terms ofsection 152 (3) must be judged on the facts and circumstances as knownto the Magistrate at the time the question came on to be decided by himand not by what may have happened at the trial at a point of time afterhe had decided that question. In. the instant case, however, I am satisfiedthat the reasons relied on by the Magistrate at the time he assumedjurisdiction have been vindicated by the events that accompanied the trial.I am unable to uphold objection (a).
In regard to objection (5), so far as I understood Mr. De Silva, heclaimed that the trial was invalid in that certain charges which had beenincluded in the total of ten charges could not have been joined with theothers without violating the relevant provisions of Chapter XVH of ourCriminal Procedure Code. More specifically, while conceding that allten offences alleged may have been committed in the course of one andthe same transaction as that expression is understood in that Chapter, heargued that the joining together at one trial (or in one indictment) ofcharges (2), (3) and (4) with charges (5), (6), (7) and (8) amounted to afatal misjoinder of charges. I must oonfess that this argument came tome as quite a surprise having regard to my own knowledge of the practiceof joining such charges together which has been obtaining in oar courts
T. S. PERNANDO, J.—Khan v. Ariyadasa
for a very long time. Indeed, had not the question been raised seriouslyby counsel of such long and tried experience as Mr. De Silva himself, Ishould have been minded to dismiss the point summarily as it seemed tome reasonably plain that the practice I have referred to above is warranted-—by section 180 (1) as well as by section 180 (2) of our Criminal ProcedureCode.
Mr. De Silva, however, contended that what can be so joined togetherare different offences but not one and the same offence by different names.He argued that section 32 of the Penal Code which was obviously thefoundation of charges (5), (6), (7) and (8) created no offence, and thatlikewise section 146 created no offence and remained merely a basis ofcriminal liability. Speaking for myself, I should have thought that thisargument was set at rest some years ago by our Court of Criminal Appealin the case of The King v. Heen Baba L The answer to the question that•confronted the three judges who decided that case depended on whether■charges of offences (based on section 32) are implied in charges of offencesbased on membership of an unlawful assembly. Said the judges inthat case:—
“ It is well settled law that section 146 creates a specific offence anddeals with the punishment of that offence and that section 32 merelydeclares a principle of law and does not create a substantive offence.”
Bor this statement of the law the Court relied on the opinion of theJudicial Committee of the Privy Council in the leading case of BarendraKumar Ghosh v. Emperor2 delivered by Lord Sumner. His Lordship,after referring to the Indian Penal Code equivalents of sections 32 and146, viz., sections 34 and 149 of that Code, stated that “section 149, how.•ever, is certainly not otiose for in any case it creates a specific offence anddeals with the punishment of that offence alone.” In the course of thename speech, Lord Sumner, explaining the difference between the two.sections 34 and 149, stated:—
“There is a difference between objeot and intention, for, thoughtheir object is common, the intentions of the several members maydiffer and indeed may be similar only in respect that they are all un-lawful, while the element of participation in aotion which is the leadingfeature of section 34, is replaced in section 149, by membership of theassembly at the time of the committing of the offence. Both sectionsdeal with combinations of persons, who become punishable as sharersin an offence. Thus they have a certain resemblance, and may tosome extent overlap, but section 149 cannot at any rate relegate sec-tion 34 to the position of dealing only with joint action by the commis-sion of identically similar criminal acts, a kind of case which is not initself deserving of separate treatment at all.”
1 (1950) 51 N. L. R. 265.
3 (1925) A. 1. R. (P. 0.) 1.
T. S. FEB2TAND0, 3.—Khan. v. Jxiyadasa.
Mr. De Silva suggested that the opinion of the Judicial Committee thatsection 148 creates a specie offence is aa obiter dictum. 1 am xmable to
agree, but even if Mr. De Silva is right in that suggestion, it is necessaryto remind ourselves that even an obiter dictum of the Judicial Committeeis still entitled to the highest respect in our country.
The trial judge in Been Baba’s case (supra) had directed the jury that,where the indictment consisted solely of charges framed on the basis ofthe existence of an unlawful assembly, even if the jury reached a con-clusion that no unlawful assembly was established, it was competent forthem to find the accused guilty of the substantive offences alleged in thecharges by placing reliance on section 32. The jury in that case foundthe accused not guilty on the charges in the indictment, but found themguilty of the substantive offences alleged in those charges read withsection 32. This course is precisely what the Court of Criminal Appealheld it was not competent for the jury to do in the absence of specificcharges. To quote the words of the judgment, “ for the reasons givenabove we are of opinion that in the absence of a charge the appellantscould not have been convicted (of any of the offences) under sections433, 380, 383, 382 read with section 32. ” I think the language useditself justifies one in inferring that the Court implied there that chargesbased on the existence of an unlawful assembly could have been validlyjoined with the charges based on the existence of a common intentionas described in section 32.
If I may say so with humility, 1 am in respectful agreement with thedecision of the Court of Criminal Appeal in Been Baba’s case (supra),and the practice of the Attorney-General in framing indictments, atany rate after the date of the judgment in that case, has always been inkeeping with the law as interpreted therein. In any event, it is sufficientto observe that I am bound by the ruling of the Court of Criminal Appealin that case.
Mr. De Silva, however, brought to my attention in the course of hisargument a hitherto unreported judgment delivered by the SupremeCourt on March 19, 1963, in the ease of B. Don Martkelis and others v. TheQueen l. In that case, Abeyesundere J. (with Herat J. agreeing), up-holding an argument that the indictment presented by the Attorney-General was invalid in that charges based on the allegation of unlawfulassembly could not be validly joined with charges based on commonintention, stated as follows :—
" Section 178 of the Criminal Procedure Code requires every chargeto be tried separately except in the cases mentioned in sections 179,180, 181 and 184 of that Code. Crown Counsel who appeared for theAttorney-General conceded that none of the four last-mentionedsections applied to the counts in the indictment in this case. Thejoinder of the two sets of charges referred to above is therefore notaccording to law. ” 1
1 (IWJ) M N. L. K. 19.
T. S. FERNANDO, J.—Khan v. Ariyadasa
As I find that the Attorney-General, this concession of Crown Counselnotwithstanding, is even today persisting in presenting and supportingindictments in the same form which has been successfully objected to inDon Marthelis v. The Queen (supra), I fear I must surmise that the con-cession is personal to the learned Crown Counsel concerned and is not onemade on the authority of the Attorney-General. Even if I am found tobe wrong in this surmise, being a concession of counsel on a questionof law, it is not binding on the court. I am therefore free to ignore itwhere I am satisfied that there is express provision in the Code enablingthe joinder. I have referred above already to the enabling provisions,viz., sub-sections (1) and (2) of section 180 of the Criminal ProcedureCode, and I need only add that the effect of joining charges must beunderstood as limited by the provisions of section 67 of the Penal Code.As no reference has been made in the recent judgment to Eeen Baba'scase (supra), it is not unreasonable to infer that the Court has not consi-dered its effect on the point raised. Had the Court considered it I enter-tain little doubt that the Court would have referred to it in the judgment,particularly as the decision being one of the Court of Criminal Appeal ispresumably binding on a bench of two Judges of the Supreme Court,although the Court of Criminal Appeal is technically a Court different fromthe Supreme Court. Moreover, the opinion of the Privy Council is bindingon the Supreme Court.
In regard to the principle of stare decisis which is observed also in Ceylon,the law as at present understood appears to be that if a relevant authorityis. not mentioned in the judgment, the decision may bu challenged. Itis useful in this connection to refer to a fairly recent decision of the Courtof Appeal in England, Morette, Ltd. v. Wakeling where five judgesconcurred in stating that
“ as a general rule the only cases in which decisions should he heldto have beeD given per incuriam are those of decisions given in ignoranceor forgetfulness of some inconsistent statutory provision or of someauthority binding on the court concerned : so that in such cases somepart of the decision or some step in the reasoning on which it is basedis found, on that account, to be demonstrably wrong. This definitionis not necessarily exhaustive, but cases not strictly within it whichcan properly be held to have been decided per incuriam must, in ourjudgment, consistently with the stare decisis rule which is an essentialfeature of our law, be, in the language of Lord Greene, M.R., of therarest occurrence. ”
If the wrong concession on the part of counsel has led to the courtentertaining the feeling that it was unnecessary to examine the wordingof section 180, and if that section, though referred to, did not come to heexamined by the court, and if when it is now examined it plainly supportsthe validity of the set of charges, then it seems to me it may be said thatthe case has been decided per incuriam ; alternatively, as Eeen Baba'scase (supra) has not even been mentioned in the judgment, it must be
1 (1955) 1 A. E. R. at 718.
3$T, S. FEBHAMDO, J.—Khan e. Ariy&data^
—— – fc- ■ — —______
presumed that the judgment was arrived at through forgetfulness of thatdecision which was binding on the Court. In that sense too, it seemsto me that Don Marihdis o. The Queen (supra) was derided per tncttriam.
As the sections of the corresponding provisions of the Indian PenalCode are word for word the same as those of our Penal Code which cameto be modelled largely on that very Code, it may be of some interest torefer to the view taken recently by the Supreme Court of India on thequestion of law decided in Been Baba's case (supra). In Nanak Ohand v.State of Punjab three judges of that Court have in the year 1955 cometo a conclusion that a person charged with an offence read with section149 cannot be convicted of the substantive offence without a specificcharge being framed. Said Imam J.. (delivering the judgment of theCourt)—at p. 278—“ A charge for a substantive offence under section302 or section 325 is for a distinct and separate offence from that undersection 302 read with section 149 or section 325 read with section 149 ”.Mr. De Silva, in support ox his argument that section 146 created no•offence, pointed to the absence in that section of any provision in respect•of punishment. This matter too has received comment in the Indianjudgment where it states—see p. 27S—that “Section 149 creates an offence,but the punishment must depend on the offence of which the offenderis by that section made guilty. Therefore the appropriate punishment■section must be read with it. It was neither desirable nor possible toprescribe one uniform punishment for all cases which may fall within it. ”The Code provides otheT similar instances of specific offences being created,e.g., abetment and conspiracy, where the punishment section has to beTead with the section creating the offence. Further, it seems to me that asimple test fox deciding whether what the prosecution alleges are twodistinct and separate offences are in reality one and the same offencewould be to consider whether the elements necessary to establish theone are the same as those necessary to establish the other. Judgedby this simple test, it will be readuly seen that what was alleged in chargeHo. (2) in this case was an offence different from that alleged in chargeNo. (5), and what was alleged in charge Ho. (4) was an offence differentfrom that alleged in charge No. (8).
Whatever view may be taken on the question whether Don Martheli3 v.The Queen (supra) was decided per incuriam, bound as I am by the decisionof the Court of Criminal Appeal, in Seen Baba v. The King (supra), I amfree not to follow Don Marthelis’ case.
The second question, of law relied on also fails. In the result all the-appeals are dismissed.
1 A. I. B. (im) 8. C. m.
A. K. A. M. KHAN and others, Appellants, and M. G. ARIYADASA, Respondent