029-SLLR-SLLR-1986-V-2-DINGIRI-BANDA-v.-THE-ATTORNEY-GENERAL.pdf
DINGIRI BANDAv.
THE ATTORNEY-GENERAL
COURT OF APPEAL.
SIVA SELLIAH. J. AND GOONEWARDENA. J.
C. A. APPEAL 289/83.
M. C. MAWANELLA 15067.
MARCH 26. 1986.
Criminal Law – Intoxication – Penal Code, section 79 – Imputation ofknowledge-Mischief-Penal Code, section 410-Charge-Accused charged fromplaint – Code of Crimial Procedure Act, section 182 – Offences Against PublicProperty Act No. 12 of 1982, section 2 – Sentence.
Where intoxication of the accused when he committed the crime is voluntary the lawimputes to the drunkard the knowledge of a sober man where knowledge is an essentialelement of the crime and where intent is an essential element of the crime the lawimputes to the drunkard the knowledge of a sober man in so far as that knowledge isrelevant for the purpose of determining his intention.
*r
For the offence of mischief knowledge is sufficient and hence voluntary intoxication isnot a defence.
Charging,the accused from the charge sheet would be in strict compliance with s. 182of the Code of Criminal Procedure Act. Failing to charge from the charge sheet butinforming the accused from the plaint that he had committed the offence of mischiefunder s. 410 of the Penal Code may be allowed where no failure of justice is occasionedand the accused has not been misled or prejudicedvthereby.
The Offences Against Public Property Act No. 12 of 1982 has not enlarged the punitivejurisdiction of the Magistrate but invoking s. 2 of the said Act'he can impose a sentencefalling within his general jurisdiction yet adhering to the minimum sentence prescribedby the said Act.
Cases referred to:
The King v. Rengasamy-(7 924) 25 N.L.R. 438.
Bhoor Singh v. State of Punjab-! 1974) 4 SCC 754, 1974 SCC (Cri) 664.
Willie Stanely v. State of M.P.-(1955) 2 SCR 1140.
NanakChandv. State of Punjab-! 1955) 1 SCR 1201.
Kahan Singh v. State of Haryana-(1971) SCC (Cri) 426, (1971) 3 SCC 226.
APPEAL from judgment of the Magistrate's Court of Mawanella.
H. M. P. Herat for accused-appellant.
Mrs. Kumudini R. de Silva. S.C. for Attorney-General.
Cur. adv. vult.
May 8. 1986.
GOONEWARDENA, J.
This case instituted against the accused in the Magistrate's Court waswith respect to a charge which though in Sinhala rendered into Englishby reference to the plaint filed would read as follows:
"On 15.09.1982 in the Magistrate's Court of Mawanella.
In terms of section 136 of Chapter XIV of the Code of CriminalProcedure Act No. 15. I. Sub-Inspector Wickremasinghe,Officer-in-Charge of the Crimes Branch of the Mawanella Police, dohereby report this day to Court that Gondiwela Ralalage DingiriBanda of Hingula, Mawanella did on or about the 26th day ofAugust 1982 at Mawanella within the jurisdiction of this Courtcause damage to the value of Rs. 7,056 by striking the frontwindscreen of lorry No. 28 Sri 257 property in the possession of
Wijesinghe Etampolage Gunatilleke of Girandurakotte. Mahiyanganaof the Mahaweli Authority and thereby committed an offencepunishable under section 410 of the Sri Lanka Penal Code read withsection 2 of the Offences Against Public Property Act No. 1 2 of1982".
The events which led to this prosecution were very briefly asfollows: This lorry belonging to the Mahaweli Authority wasproceeding along the main road at Mawanella when the accused whowas after liquor compelled it to be brought to a halt, wrenched off itswindscreen wiper and with it belaboured the windscreen causingdamage to it estimated at Rs. 7,056. The accused's version inevidence was that he was being attacked by some persons and with aview to escape them he attempted to climb on to this lorry. Hisevidence did not exclude the possibility of the windscreen wiperhaving come off as a result, but he had stated that he did not at anystage contemplate causing damage to the lorry.
The learned Magistrate at the conclusion of the trial found theaccused guilty of the charge and whilst sentencing him to undergo aterm of one years rigorous imprisonment also imposed upon him a fineof Rs. 21,168 being three times the amount of the loss or damagecaused under the provisions of section 2 of the Offences AgainstPublic Property Act No. 12 of 1982 and it is against this convictionand sentence that this appeal has been preferred.
There do not appear to me to be any valid reasons for interferingwith the Magistrate's conclusion on the facts, nor were any reasonsseriously urged before us at the hearing. However, the accused'sCounsel addressed an argument which appeared to suggest that inview of the intoxicated state of the accused he was not responsible inlaw for this act. The accused's evidence was not that his state ofintoxication was involuntary. Indeed his evidence had been that heconsumed this liquor of his own volition. What then was the extent ofhis responsibility for this act?
Section 79 of the Penal Code states thus :
"In a case where an act done is not an offence unless done with aparticular knowledge or intent a person who does the act in a stateof intoxication shall be liable to be dealt with as if he had the sameknowledge as he would have had if he had not been intoxicated-unless the thing which intoxicated him was administered to himwithout his knowledge or against his will".
A leading case with regard to the meaning of this section was, TheKing v. Rengasamy (1). There it was pointed out that section 79 isintended to deal with two classes of cases-
cases in which knowledge is an essential element of the crime,and
cases in which intent is an essential element of the crime.
It was held by the majority of the judges (Bertram, C. J. and DeSampayo, J.) that in the first of these cases it imputes to the drunkardthe knowledge of a sober man and in the.second of them it alsoimputes to the drunkard the knowledge of a sober man in so far thatknowledge is relevant for the purpose of determining his intention.
Now mischief is defined in the Penal Code in section 408 asfollows:
"Whoever with intent to cause or knowing it is likely to causewrongful loss or damage to the public or to any person causes thedestruction of any property or any such change in any property or inthe situation thereof as destroys or diminishes its value or utility oraffects it injuriously commits mischief".
If therefore one applies the-view of the majority of the judges inRengasamy (supra) to the case before us (assuming the accused wasintoxicated) it is clear that if one is considering the knowledge of theaccused (as appearing in the definition of mischief) we would have toimpute to him the knowledge of a sober man whereas if one isconsidering the intention of the accused (again as appearing in thedefinition of mischief) we would have to also impute to him theknowledge of a sober man in so far as that knowledge is relevant forthe purpose of determining his intention.
In the same case Garvin, A.J. placed a narrower construction that theimputation of knowledge authorised by section 79 should be confinedto those cases in which knowledge and intention are specifically statedas alternative mental elements of an offence. It will be seen havingregard to the definition of the offence of mischief that even in suchnarrower view that accused cannot escape liability assuming againthat he was intoxicated. This assumption as to his state of intoxicationitself is I think without proper foundation although adopted for thepurposes set out above. The accused's own evidence was that hewas in possession of his senses. Thus if he did not possess therequisite intention he had at least the requisite knowledge so as tomake him liable for the act he committed. Accordingly the defencebased upon intoxication I think must fail.
Counsel for the accused at the hearing complained that his clienthad not been properly charged and he appeared to refer to theabsence of what is commonly called a charge sheet. At thecommencement of his judgment the Magistrate had referred to theaccused having been charged in accordance with the plaint, to whichhe had tendered a plea of ’not guilty’. The journal entry of15.09.1982 shows a rubber stamp impression which though notclearly decipherable indicates inter alia that the trial of the case hadbeen fixed for the 11th of October 1982. Anyone possessing areasonable degree of familiarity with the working of a Magistrate'sCourt specially a busy one would appreciate the usefulness in its fightagainst time to resort to the use of this type of rubber stamp andwould also realise from the context that the unclear words before thespace intended for the insertion of the trial date would indicate thatwhen the charge was read to the accused his plea did not amount toan unqualified admission of guilt. The very impression of the rubberstamp unlike something written by hand would indicate what thesewords are and the Magistrate's explanation that the accused hadpleaded 'not guilty' upon being charged puts the matter beyonddoubt. The legality of charging an accused person in the manner inwhich it was done in this case may then be examined. Theproceedings against the accused were instituted on a written report(commonly called a plaint) by a police officer under section 1 36(1 )(£>)of the Code of Criminal Procedure Act No. 1 5 of 1979 (section 148(1 )(£>) of the old Criminal Procedure Code). The next step was for theMagistrate to charge him under section 182(Section 187 of the oldCode). It is the usual practice in Magistrate's Courts to charge anaccused person with reference to a charge sheet on which the plea ofthe accused is recorded as well. Such practice in my view is a verydesirable one and is a strict compliance with the provisions of section182 of the Code of Criminal Procedure Act. This charge sheet as amatter of practice is more often than not tendered to Court by thePeace Officer filing his report under section 136 (1)(fc>) (plaint) and isvirtually worded in terms identical with the plaint (corrected by theMagistrate if necessary). The question then is whether as in the casebefore us the absence of such a charge reduced to writing as appearsto be the requirement of section 182 of the Code of CriminalProcedure Act No. 15 of 1979 invalidates the trial. Upon a carefulconsideration of the circumstances and being mindful of the actualday to day working of Magistrate's Courts, I venture to state that theanswer to that question should be in the negative unless the failure toreduce the charge to writing occasioned also a failure of justice. In thecase before us it cannot I think be said that there was such a failure ofjustice. The accused faced his trial and cross examined the witnesseson the basis of the charge which he then must be deemed to haveunderstood, and even tendered his own evidence on that basis. Thus,
I take the view that the accused was not misled or prejudiced in hisdefence. The Indian Courts in certain cases appear to have taken aview akin to mine as the following passage from page 164 of "TheCriminal Court Handbook" by P. L. Malik (1 7th Ed.) indicates:
"The object of charge (sic) is to give to the accused notice of thematter he is charged with and does .not touch jurisdiction. Ifnecessary information is conveyed to him in other ways and there isno prejudice, the trial is not invalidated by the mere fact that thecharge was not formally reduced to writing. The essential part ofthis part of law is not any technical formula of words but the reality,whether the matter was explained to the accused and whether heunderstood what he was being tried for. Bhoor Singh v. State ofPunjab (2), Willie Stanely v. State of M.P.(3) relied on. See alsoNanak Chand v. State of Punjab (4) and Kahan Singh v. State ofHaryana (5)".
That the object of the charge is to give the accused the information heis entitled to have is clarified by section 1 65(6) of the Code of Criminal
Procedure Act No. 1 5 of 1 979 which reads “the charge shallbe
read to the accused in a language which he understands".
This argument too then does not succeed.
Another argument was adduced at the hearing before us that thecharge was defective, in that it sought to make the accused liable forpunishment under two different statutes. Counsel for the appellantclaimed that this 'joinder' was defective. I have not been able to findany local cases dealing with this question and the matter mus"t thus beexamined without that aid.
The Offences Against Public Property Act No. 12 of 1982 states itsobject to be "to make provision in respect of certain offencescommitted in relation to public property and for matters connectedtherewith or incidental thereto". "Public Property" is defined to meanthe property of the Government, any department, statutory board,public corporation, bank, co-operative society or co-operative union(section 1 2). The Act provides for certain punishments with respect tocertain offences as one of the principal matters dealt with, provides forforfeiture of property to recover the value of fines imposed and alsoprovides for the remanding of the accused in certain cases pendingtrial and after trial pending appeal. Now the offences dealt with by thisAct are all known to the Penal Code and the description of suchoffences have all adopted the definition contained in the Penal Code,by the use of the words "has the same meaning as in the Penal Code"(Vide section 1 2). If then it is sought to be made known to an accusedperson that he is liable inter alia to the special punishment directed tobe imposed by this Act how does one go about doing this. As a matterof argument one can say there are two ways of doing this, one bymentioning this Act (as here) and the other by not mentioning it. Can itbe said logically that an accused sought to be subjected to theprovisions of this Act would be misled or prejudiced in his defence bymaking a reference to the Act in the charge and would it be reasonableto say that the accused can be heard to complain about an inclusion ofa reference to this Act in the charge while not being allowed to socomplain about a non reference to the Act, when one has regard tothe object of framing a charge against an accused person. In my viewthere can be only one answer to that and that is to say there must be aclear reference to that Act as well in the charge. Section 164 of theCode of Criminal Procedure Act sets out certain requirements relatingto the charge. It provides that if the law which creates the offencesgive it in specific name the offence may be described in the charge bythat name only. It also provides that the law and the section of the lawunder which the offence is said to have been committed is punishableshall also be mentioned in the charge. In the case before us theoffence is one of mischief (to public property) and can therefore bedescribed by that name only in the charge. It is punishable under
section 410 of the Penal Code and also punishable under section 2 ofthe Offences Against Public Property Act No. 12 of 1982. Since thedefinition in the Offences Against Public Property Act has specificallyincorporated the definition in the Penal Code the clearest way to givean accused person notice of the matter with which he stands chargedwould be to refer to the Penal Code and the clearest way to give himnotice of the law which renders him liable to punishment is to refer toboth such laws. What was sought to be done here was to inform theaccused that he had committed the offence of mischief as defined inthe Penal Code for which he was liable to be punished under section410 thereof. That had in fact been done. What was also sought to bedone was to give the accused person notice that he had committedthe offence of mischief as defined in the Offences Against PublicProperty Act No. 1 2 of 1 982 for which he was liable not only to thepunishment described in section 2 but also subjected to the otherliabilities provided by the Act such as forfeiture of property. That toohad in fact been done and in my view in the simplest and mosteffective way possible by a reference to both statutes.
I therefore take the view that the charge is not defective by reason ofits reference to the provisions of both the Penal Code and theOffences Against Public Property Act No. 12 of 1982
The only question remaining is whether the Magistrate had thejurisdiction in law to impose the punishment he did. Section 14 of theCode of Criminal Procedure Act provides as follows
"A Magistrate's Court may impose any of the following
sentences:
Imprisonment of either description for a term not exceeding twoyears ;
Fine not exceeding one thousand five hundred rupees;
Whipping ;
{d) Any lawful sentence combining any two of the sentencesaforesaid;
Provided that anything in this section shall not be deemed torepeal the provisions of any enactment in force whereby specialpowers of punishment are given".
The Offences Against Property Act No. 1 2 of 1982 nowhereenlarges the punitive jurisdiction of the Magistrate's Court conferredby the said section 14. In the absence of clear words to thecontrary I am of the view that the Magistrate's power was limited bythis section. Instances are not wanting where when the legislatureintended to enlarge such jurisdiction it did so by the use of words tothat effect. When the Magistrate invoked the provisions of section 2of the Public Property Act No. 12 of 82 in my view he came up againstthe barrier limiting his jurisdiction to the imposition of a fine notexceeding Rs. 1500, and could not impose anything beyond that. Heof course acted completely within jurisdiction in imposing a term ofone year rigorous imprisonment which by the said section hemandatorily had to impose and which in any event in my view wasjustified in all the circumstances of the case.
I would therefore affairm the conviction but vary the amount of thefine imposed by him to one of Rs. 1500 in default of payment of whichthe accused will undergo a further term of 3 months rigorousimprisonment which will be in addition to the one years rigorousimprisonment ordered by the Magistrate.
Subject to this variation the appeal is dismissed.
SIVA SELUAH, J. -1 agree.
Appeal dismissed.