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Present: Lyall Grant J.
PREMAWARDENE SIRIWARDENE et al
344-344a—P. 0. Balapitiya-, 10,276.
Charge—Accused charged with criminal force, assault, criminal intimida-tion—Convicted of insult—Criminal Procedure Code, s. 181.
A person charged -with having committed the offences of wrongfulrestraint, criminal force, criminal intimidation, and misconduct inpublic under sections 332, 343, 486, and 488, respectively, of thePenal Code cannot be convicted of insult under section 484 of thePenal Code without a specific • charge being framed against himunder the section.
PPEAL from a conviction by the Police Magistrate ofBalapitiya. The two accused were charged with having
wrongfully obstructed the complainant from proceeding in his busand threatened to strike the complainant and thereby committingoffences punishable under sections 332, 343, 486, and 488 of thePenal Code. The Magistrate, however, convicted the first accusedof insult with intent to provoke a breach of the peace under section484, and the second accused under sections 484 and 486.
De Zoy'sa, K.C. (with Amarasekera), for first accused, appellant.—The accused has been convicted of an offence with which he was notoriginally charged. All the possible offences with which the prose-cution intended to charge the accused have been specifically referredto in the original charge. The present offence is a distinct one, andthe Magistrate, before convicting him thereon, should have frameda fresh charge and given the accused an opportunity of meeting it.
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Counsel cited (1899) Koch's Reports, p. 33, and Dingirikami v.
Even if a fresh charge had been framed against the accused, the dene v. Siri-evidence in the case does not furnish all the elements necessary to wardeneconstitute the offence of insult under section 484. There is noevidence that the accused’s conduct was such as to cause thecomplainant to commit a breach of the peace or any other offence.
Counsel cited Senanayake v. Don John? Mataregawera v. Tara-tempi Unnanse3, Waas v. Samaranayake4 and Sabaratnam v.
Ranawake, for the second accused, appellant, urged the samepoints as above on behalf of the second accused in respect of theoffence under section 484. The offence of criminal intimidation hasnot been made out; the actual threat used is not stated.
Counsel cited (1899) Koch’s Reports, p, 66, and Murukesu v.Karunakara.6
Soertsz (with Weerasinghe)-, for complainant, respondent.—Theconvictions for insult are justified under sections 181.and 182 of theCriminal Procedure Code. The offence of insult was one of a seriesof acts committed in the course of one transaction. The accusedcan be convicted of any offence proved to have arisen out of theseseries of acts although not originally included in the charge.
As regards the offence of criminal intimidation, though the actual,words used have not been referred to, the Magistrate was justifiedin inferring the nature of the threat used from the evidence.
November 6, 1928. Lyall Grant J.—:
The two accused in this case were charged with having, while in astate of drunkenness, wrongfully obstructed the complainant fromproceeding in his bus, hauled the conductor from the bus, andthreatened to strike the complainant, and thereby committingoffences punishable under sections 332, 343, 486, and 488 of thePenal Code.
Section 332 refers to wrongful restraint, section 343 to assault orcriminal force, section 486 deals with criminal intimidation, andsection 488 with misconduct in public by a drunken person.
The Police Magistrate has not convicted the first accused of anyof these offences, but he has convicted bim of insult with intent toprovoke a breach of the peace under section 484. He has convictedthe second accused under sections 484 and 486. Primd facie, thetwo accused have been convicted of offences with which they werenot charged.
1 (1906) Lem. and Aser. 46.* (1915) 6 Bal. Notes 43.
1 (1901) 5 N. L. R. 22.5 (1916) 3 C. W. R. 120.
3 (1914) 2 Cr. Ap. Rep. 49.« (1923) 2 T. C. L. R. 64.
30/22( 294 )
dene v. Siri-warden*
It was argued for the complainant on appeal that this procedurewas admissible under sections 181 and 182 of the Criminal ProcedureCode ; section 181 provides :—
“ If a single act or series of acts is of such a nature that it isdoubtful which of several offences the facts which can beproved, will constitute, the accused may be charged withall or any One or more of such offences and any number ofsuch charges may be tried at one trial and in a trial beforethe Supreme Court or a District Court may be included inone and the same indictment; or he may be charged withhaving committed one of the said offences without-specifying which one.”
In the present case it is evident that the accused was charged withall the offences which it was thought that the facts which could beproved would be likely to constitute.
Section 181, it seems to me, is a section the application of whichmust be carefully limited, as an extended application would lead toresults which would be very unfair to an accused person.
. The instances given in the illustrations to the section are instancesof offences of much the same character, offences which it is oftenexceedingly difficult to distinguish and which are punishable bymuch the same punishment.
It is obvious that the offence of insult is something entirelydifferent from wrongful restraint or the Use of criminal force. Theoffence under section 488 is also a totally different offence.
The only difficulty arises in regard to the question whether aperson charged with committing the offence of criminal intimida-tion can reasonably be convicted of insult with intent to provokea breach of the peace. The offence of criminal intimidation isdefined in section 483. It consists in a threat of injury to a personwith intent to cause alarm, or to cause him to do any act which heis not legally bound to do or to omit to do an act which he is legallyentitled to do as a means of avoiding the execution of such threat.
It seems to me that the two offences are radically distinct andshould be separately charged.
The convections under section 484 must therefore be set aside.There remains the conviction of the second accused under section486, and in order to decide whether this conviction is good it isnecessary to examine the evidence.
The learned Police Magistrate has accepted the evidence for theprosecution and has rejected the evidence for the defence. Inconsidering the weight that ought to be attached to these respectivestories, one ought, I think, to take into account the fact that aconsiderable time elapsed between the date of the alleged occurrence
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and the date on which a oomplaint waft made.. The offences were IMS.allied to have been committed on February 21, but no oomplaint t~was made to'the Court until March 2.Gbaht J.
There is evidence that both the first and the second accused were — ~T~~
the object of machinations by enemies or rivals. The first accused dene v. S4rihas been in Government service for twenty-five or six years and isa Vidane Arachchi and an Inquirer into Crimes. The second accusedwas a Patabendi Arachchi on probation at the time the charge waabrought, and there is trustworthy evidence that the opposition tohis appointment was pushed so far that on February 23 a questionabout it was asked in Legislative Council.
In regard-to the direct evidence, the learned Police Magistrate ha?had the advantage of seing the witnesses, but I am bound to confess' that a perusal of the written evidence leads me to the conclusionthat the story of the defence is a more likely one than that of theprosecution.
I do not think it would be safe to convict the second accused onthe evidence which has been led in the case.
Both appeals are therefore allowed and the accused acquitted.
PREMAWARDENE v. SIRIWARDENE et al