045-NLR-NLR-V-41-ATTORNEY—GENERAL-v.-JAMES-SINGHO.pdf
NIHILL J.—Attorney-General v. James Singho.
199
Present: Nihill J.
ATTORNEY-GENERAL v. JAMES SINGHO.
627—M. C. Anuradhapura, 1,328
Motor omnibus—Charge against driver—Aiding and abetting offence of over-crowding—Liability of driver—Motor Car Ordinance, ss. 66 (3) and 89(Cap. 156).
The driver of a motor omnibus may be charged with aiding andabetting the commission of the offence of over-crowding, although undersection 66 (3) of the Ordinance he is not himself liable for the offence.
PPEAL from an acquittal by the Magistrate of Anuradhapura.
Nihal Gunesekera, C.C., for complainant, appellant.
No appearance for respondent.
February 28, 1940. Nihill J.—
In this case the Attorney-General is the appellant and the appeal isagainst the acquittal of the accused-respondent, a motor omnibus driver,who was charged with aiding and abetting the commission of an offenceunder section 66 (3) of the Motor Car Ordinance {Cap. 156).
■ 13 N. L. R. 173.
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NIHILL, J.—Attorney-General v. James Singho.
The learned Magistrate without hearing any evidence acquitted therespondent on the grounds that since by the terms of section 66 (3)he was not liable as the driver of the omnibus for the over-crowding,he could not be held liable for abetting an offence which he himself as adriver could not commit.
I do not know on what authority the Magistrate founds this proposition.Section 66 (3) makes the conductor of an omnibus, not the driver, liableas a principal for the offence of over-crowding for the good reason that theconductor is the person who is there in the omnibus for the expresspurpose of regulating the seating of the passengers and the collection oftheir fares, but if the driver with guilty knowledge of the conductor’soffence chooses to abet it, he then becomes as liable as the conductor bythe provisions of section 89.
The essence of section 89 is not the offence of over-crowding but theabetment of that offence and the section reflects the general principlesof the law of abetment as set out in Chapter V of the Penal Code.
It is easy to think of instances where an abettor could not himself beguilty of the offence abetted. For an example, could not a minister ofreligion or registrar of marriages who intentionally and with guiltyknowledge performed a bigamous marriage be held accountable forabetting the bigamy or a person other than a public servant who abets apublic servant to receive a bribe ?
I am indebted to Mr. Nihal Gunesekera for citing to me the Englishcase of Gough v. Rees1 which is very much in point. There it was heldthat the fact that section 15 of the Railway Passenger Duty Act imposesa penalty only on the “ driver , conductor or guard ” of an omnibus whichis overloaded did not preclude the conviction of the owner for aiding andabetting under section 5 of the Summary Jurisdiction Act, 1848. Thatsection provides that: —
“ Every person who shall aid, abet, counsel, or procure the com-mission of any offence which is or hereafter shall be punishable onsummary conviction shall be liable to be proceeded against andconvicted for the same, either together with the principal offender,or before or after his conviction, and shall be liable on conviction to thesame forfeiture and punishment as such principal offender. ”
Now sections 89 and 90 of Cap. 156 together provide similar means forthe conviction and punishment of one who abets an offence under section66 (3). It is clear therefore that this case must be reheard since theMagistrate founded his acquittal on a wrong view of the law. Hisjudgment is also open to objection in that he did not hear the evidencebut relied on admissions. In a criminal case nothing can be taken asadmitted
I set aside the order of acquittal and remit the case back for trial onthe charge framed against the respondent.
Set aside.
> 142 Law Times Rep. 424.