DBIEBERG J.—Deputy Fiscal, Motara v. Don Garolis.
Present: Brieberg J.
DEPUTY FISCAL, MATARA v. DON CAROLIS.
197-5—P. C. Matara, 57,497.
Joinder of okorges—Giving /afce in/ormatton to public servant—Two petitions—Course ofthe same transaction—Joint offences—CriminalProcedure
Code, s. 184.
Under section 184 of the Criminal Procedure Code two persons maybe charged together with having committed several offences in the courseof the same transactin, if such offences were committed by them< jointly.
^^PPEAL from a conviction by the Police Magistrate of Matara.
.Hayley, K,G. (with him Roberts), for the accused, appellant.
Rajapakse for the complainant, respondent.
June 29, 1931. Drieberg J.—
Hinni Appu, a process server, had a summons for service on the firstaccused-appellant who was the first defendant in D. C. Matara, 2,903.It required the first appellant to enter appearance within seven days ofservice. Hinni Appu says he served it on October 7; on October 8 heswore to the service.
DBIBBEBG J.—Deputy Fiscal, Matara v.' Don Carolis.
The first appellant says he was not served on the 7th but that on the12th Hinni Appu asked him to accept the summons and threw it into hiscar: this is what he says in his petition (A). He did not give evidence atthe trial. The learned Police Magistrate has held, and I think rightlythat this story of service on the 12th is not true and it is clear that thefirst appellant has procured the assistance of the second appellant tosupport it.
The petition A by the first appellant is dated October Id and addressedto the Deputy Fiscal. In it he complains of the false return and theservice on the 12th.
The petition (B) of November 5 is by the second appellant and isaddressed to the Assistant Government Agent. The petitioner begins bymentioning the service of a summons on October 12 by a process serverwho threw it into a car in which he and others were and that theperson for whom the summons was intended stated that “ it hadnot been properly served and that he would inform the Deputy Fiscalby petition and also requested the petitioner to give evidence to whichhe agreed
He then goes on to say that this person petitioned and that as a resultof it the Deputy Fiscal, Mr. Goonewardene, went to his employer and saidthat the second appellant was going to give evidence at the inquiry andhe referred to him in terms of abuse. The petition B was addressed tothe Assistant Government Agent in the belief that the Deputy Fiscalwas a subordinate officer of his and .the petitioner asked leave from himto sue the Deputy Fiscal for damages. The first appellant in his petition(A) states that the second appellant was in the car and had seen whathappened. It appears to me that in the petition B the second appellantintended not only to complain of the Deputy Fiscal’s conduct, but tocorroborate the first appellant’s complaint in petition (A). It was con-tended that the intention of the writer was to cause the Assistant Govern-ment Agent to act to the prejudice of the Deputy Fiscal, but he alsoknew that it was likely, even if he did not expressly intend it, that theAssistant Government Agent would act in the matter of his statementregarding the service of summons.
The appellants were charged together under section 180 for the falseinformation regarding the service contained in the petitions A and B;objection was taken in the lower Court and before' me that this was amisjoinder of charges and it was contended that the convicton of bothappellants was bad and should be set aside.
It is clear that the appellants cannot be convicted together in respectof both petitions. A charge under section 180 will only lie against theperson who gives the information. This is the view taken by the IndianCourts—see Umrao Singh 1 referred to in Ratanlal on Crimes, 10th ed.,p. 367, the report of which is not available; others may be charged withaiding and abetting the offence but that has not been done here.
DBIEBKBG J.—Deputy Fiscal, Malara v. Don Carolis.
The question then is whether this charge regarded as one against thefirst appellant in respect of the petitio'n A and against the second appellantin respect of petition B is regular.
'Section 184 would allow the trial of the two appellants together if the•offences were committed in the course of the same transaction and iffurther the appellants jointly committed each offence. Whether theoffences were committed in the course of the same transaction is a questionof fact and I am of opinion that they were so committed. In petition Athe first appellant makes prominent reference to the second appellantand formally sets him down as a witness; in petition B the second appellantmentions the fact that the first appellant has said that he would petitionrfche Deputy Fiscal and asked the second appellant to give evidence for.'him and that he agreed to do so. It is clear that one intention of thesecond appellant in P2 was to carry out his undertaking to the firstappellant to support his charge that he was not served with summonson October 7. But though these are different offences committed in thecourse of the same transaction they were not, as I have pointed out,'committed jointly and it was not possible therefore to try the twoappellants together for the separate offences arising out of the informationgiven in the two petitions.
The case against the first appellant as regards the petition A which he•sent is free from difficulty-, the joinder of the second appellant on this.part of the charge cannot possibly have prejudiced him. It is not amisjoinder of charges but of parties due. to a misconception of the lawregarding the parties who can be held liable for an act of this nature.It has not been proved who was functioning as Deputy Fiscal at the timethe petition A was received by the Deputy Fiscal, but I can assume thatat that time there was some person who held that office with the fullpowers attaching to it and among them disciplinary powers over thesubordinate members of the office. The complaint is made by Mr. Pererawho at that date, December 3, 1930, held the office of Deputy Fiscalby appointment from the Governor and also the warrant from the Fiscaland was therefore in a position to take action on the petition. In anycase the lack of sanction by the Attorney-General in such a case as thisis not a fatal irregularity:On the facts the case against the first appellant
has been proved beyond all doubt.
I set aside the conviction of the second appellant.
I alter the conviction of the first appellant to one of giving on October13, 1930, to the Deputy Fiscal of Matara, a public servant, informationwhich he knew to be false intending thereby or knowing it to be likelythat he would thereby cause the said Deputy Fiscal to use his lawfulpowers to the injury or annoyance of V. G. Hinni Appu, Fiscal’s ProcessServer.
The sentence will remain unaltered.
DEPUTY FISCAL, MATARA v. DON CAROLIS