[In The Privy Council]
Present: Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce,Lord Donovan, and Lord PearsonK. A. M. KHAN, Appellant, and M. M. G. ARIYADASA, RespondeatPrivy Council Appeal No. 46 op 19633.0. 707-711 of1962—M. O. Matara, 66552Criminal procedure—Joinder of chargee—Chargee based on existence of unlawfulaeeembly joined with charges fronted relying on e. 32 of Penal Code— Validityof each joinder of chargee—“ Distinct offence ”—“ More offences than one ”—••Common object ”—“ Common intention ”—Penal Code, ee. 32, 38, 67, 138,140, 146—Criminal Procedure Code, as. 178, 180, 181, 184.
Charges based on the existence of an unlawful assembly may be joinedtogether at one trial with charges in respect of offences committed by the accusedacting in furtherance of a common intention within the meaning of section 3?of the Penal Code, if the offences are alleged to have been committed in thecourse of one and the same transaction within the meaning of section 180 (L)of the Criminal Procedure Code.
The words “ more offences than one are committed ” in section 180 (1) of theCriminal Procedure Code must mean and must be understood as meaning moreoffences than one are alleged to have been committed.
Six persons, the second of whom was the appellant, were jointly charged incounts 1 to 4 with having been members of an unlawful assembly and withhaving committed, as members of the unlawful assembly, the offenoee of houeetrespass, rioting and causing hurt (sections 140, 434/146, 144 and 314/146of the Penal Code). They were also charged in counts 5 to 10 with havingdirectly committed, in the course of the same transaction, offences of housetrespass, wrongful confinement, causing simple hurt and causing hurt with adangerous weapon (sections 434, 333, 314 and 315 of the Penal Code). Thefirst accused was acquitted altogether. All the other accused were foundGuilty of the first seven charges. The appellant alone was found Guilty of theeighth charge. The appellant and the fourth accusod were found Guilty of theninth charge. The appellant, against whom alone the tenth charge was laid,was acquitted of that charge.
Held, that there was no misjoinder of chargee.
“ If five or more people are charged in one count with an offence puniahahleunder .section 434 (of the Penal Code) read with section 146 and in anothercount with an offence punishable under section 434 they are being charged withwhat are, for all practical purposes, distinct and separate offences. It would bewrong to regard them as being in reality one offence (so as to make inapplicablesection 180 (1) of the Criminal Procedure Code). That this is so is illustratedby considering the nature and extent of the evidence which could establish guiltin respect of each count. Thus if it were not established that these wee «aunlawful assembly (as for example if it were not shown that there wae *naeeembly of five or more persons but only of a lesser number) there could tint bea oonviction in respect of the former cotint but the evidenoe might establishthat house trespass was committed by one of them or alternatively by some ofthem in furtherance of their common intention in which cases either that one ey
those of them (who might number less than five) who had that commonintention could be convicted of the latter oount. It is well reoognised thatseotion 32 of the Penal Code expresses and declares a legal principle of lawbut does not create a substantive offence. ”
Don Martheiie v. The Queen (65 N. L. R. 19) and The Queen v. Thambipillai(60 N. L. R. 58) overruled.
>PEAL, with special leave, from a judgment of the Supreme Courtreported in (1963) 65 N. L. B. 29.
E. F. N. Oratiaen, Q.O., with T.O. Kellock and M. 1. Hamavi Haniffa,for the 2nd accused-appellant.
No appearance for the complainant-respondent.
Mark Liftman, Q.G., with Dick Taverne, as amicus curiae, for theAttorney-General of Ceylon.
Cur. adv. vuU.
April 27, 1965. [Delivered by Lord Morris of Borth-y-Gest]—
The appellant was convicted and sentenced by the Magistrates Court atMatara on the 12th July 1962 and his appeal from that conviction wasdismissed by the Supreme Court of Ceylon on the 6th May 1963. In thisappeal (brought by special leave) the main contention of the appellant isthat at his trial there was a misjoinder of charges which rendered the chargesheet invalid and the trial void.
The appellant was the second of six persons who were accused. Allwere officers of the Excise Department. The accusations arose out ofevents which took place on the 27th December 1960 and of which therespondent complained. The respondent’s wife is Daisy GunaratnaWickremasingha. The respondent has a brother Mahanthi Mulle GamageGomis. The respondent alleged that during the afternoon of the 27thDecember 1960 the six persons went by car to his house. According to hisallegations the subsequent events were as follows. After the car was haltedon his compound the six persons entered the verandah of his house. Thefirst accused kicked him and the second (the appellant) struck him on theback of his neck. The third accused handcuffed him and the fourth thefifth and the sixth accused pushed him into the car. When his wife pleadedwith the party it was alleged that she was struck by the appellant with abaton. The respondent’s brother came to see what the commotion wasand he, it was alleged, was assaulted by the appellant who used his handsand by the fourth and fifth accused who used batons and he also waspushed into the car.
The respondent and his brother were in fact driven away. They wereunder arrest. One of the questions which had to be decided in the laterproceedings was whether the appellant and his companions were, as theyasserted, engaged as Customs Officers in a lawful raid in the course of whichthey arrested the respondent and his brother for being in wrongfulpossession of what was known as ganja.
The captives were taken to the Walgama Excise Station and later to theMatara Hospital where an allegation was made by the appellant that therespondent had gan j a on him at the time that he was seized. The two menwere thereafter released by the appellant on bail. They then went to thePolice Station and complained of the assault made upon them. Therespondent and his brother were later charged in the Magistrates Court bythe appellant with the unlawful possession of ganja. On the date of trial,which was not until July 1961, a material witness (i.e. the present appellant)was not present. The Magistrate refused an application for a postpone-ment and acquitted the respondent and his brother. The prosecutiondid not appeal against the acquittal.
The respondent, as complainant, himself presented a plaint in theMagistrates Court on the 18th January 1961. His complaint in substancewas that the appellant and his companions were bent on assaulting himand were covering themselves by fabricating a case against him of being inwrongful possession of ganja. His allegation was that the six accusedwere members of an unlawful assembly the common objects of which wereto commit house trespass and to cause hurt to him. He alleged that theyhad committed an offence under section 140 of the Ceylon Penal Code.He further alleged that the six accused did commit house trespass and hadcommitted an offence punishable under section 434 read with section 146 ofthe Ceylon Penal Code. He further alleged that they committed riotingby using force and violence and by assaulting him and his wife and hisbrother and had committed an offence punishable under section 144 of theCeylon Penal Code.
On the 16th February 1961 the respondent as complainant gaveevidence in support of his plaint and the Magistrate directed the issueof a summons on the six accused with a copy of counts as then set outin their plaint. The hearing was to be on the 30th March 1961. Therewere various adjournments (to the 1st June then to the 21st June thento the 27th July and then to the 3rd August and then to the 23rd August).On the 23rd August in the presence of the accused the respondent gaveevidence. The Magistrate, being also a District Judge, on a considerationof the evidence, decided (pursuant to section 152 (3) of the CriminalProcedure Code) that he could properly try the case summarily anddecided that he would do so. Charges were then framed. They wereas follows :—
“ IN THE MAGISTRATE’S COURT OF MATARA.
You are hereby charged that you did within the jurisdiction of thisCourt at Wewahamanduwa on the 27th December 1960—
Were members of an unlawful assembly the common objects ofwhich were :—
(a) to commit house trespass by entering into a building used as ahuman dwelling to wit: the house in the occupation of the complainantabove named situate on the land called Balagewatta at Wewahaman-duwa aforesaid with intent to cause hurt to the complainant.
to voluntarily cause hurt to the complainant and that you did
commit an offence punishable under section 140 of the Ceylon Penal
That at the same time and place aforesaid and in the course ofthe same transaction set out in Charge 1 above, you did in the prosecu-tion of the said common object commit house trespass by entering into abuilding used as a human dwelling to wit: the house in the occupationof the complainant M. M. G. Ariyadasa situated on the land calledBalagewatta aforesaid with intent to cause hurt to the complainantwhich said offence was in prosecution of the said common object of thesaid unlawful assembly or was such that the members of the saidunlawful assembly knew to be likely to be committed in prosecution ofthe said common objects of the said unlawful assembly and that youbeing members of the said unlawful assembly are thereby guilty of anoffence punishable under section 434 read with section 146 of the CeylonPenal Code.
At the same time and place aforesaid and in the course of the sametransaction you did commit rioting by using force and violence byassaulting the complainant, complainant’s brother M. G. Gomisappuand complainant’s wife Daisy Wickremasingha with hands and batonsand that you have thereby committed an offence punishable undersection 144 of the Ceylon Penal Code.
At the same time and place aforesaid and in the course of thesame transaction set out in Charge 1 above, one or more members ofthe said unlawful assembly did cause hurt to M. G. Ariyadasa, M. G.Gomisappu and Daisy Gunaratna Menike Wickremasingha which saidoffence was committed in prosecution of the said common objectof the said unlawful assembly or was such that the members of thesaid unlawful assembly knew to be likely to be committed in prosecutionof the said common object of the unlawful assembly and that youbeing members of the said unlawful assembly did commit an offencepunishable under section 314 read with section 146 of the CeylonPenal Code.
At the same time and place aforesaid and in the course of thesame transaction you did commit house trespass by entering into abuilding used as a human dwelling to wit: the house in the occupationof M. M. G. Ariyadasa situate on the land called Balagewatta atWewahamanduwa with intent to cause hurt to the said Ariyadasa andyou have thereby committed an offence punishable under section 434of the Ceylon Penal Code.
fj. At the same time and place aforesaid and in the course of thesame transaction you did wrongfully confine the said M. M. G. Ariyadasaat Wewahamanduwa and other places and that you did therebycommit an offence punishable under section 333 of the Ceylon Penal1©ode#
At the same time and place aforesaid and in the course of thesame transaction you did wrongfully confine M. M. G. Gomisappu atWewahamanduwa and other places and you did thereby commit anoffence punishable under section 333 of the Ceylon Penal Code.
At the same time and place aforesaid and in the course of the sametransaction you did voluntarily cause hurt to M. M. G. Ariyadasa andthat you did thereby commit an offence punishable under section 314of the Ceylon Penal Code.
At the same time and place aforesaid and in the course of the sametransaction you the 2nd, 3rd and 4th accused did cause hurt to M. M. G.Gomisappu and did thereby commit an offence punishable undersection 314 of the Ceylon Penal Code.
At the same time and place aforesaid and in the course of thesame transaction that you the 2nd accused above named did cause hurtto Daisy Gunaratna Menike Wickremasingha with an instrument whichwhen used as a weapon of offence is likely to cause death to wit a batonand that you did thereby commit an offence punishable undersection 315 of the Ceylon Penal Code.”
To those charges each of the six accused pleaded Not Guilty. One ofthe charges (Charge 3) would not have been triable summarily but for thepower given to the Magistrate (being also a District Judge) by the above-mentioned section of the Criminal Procedure Code. The trial was fixed forthe 6th October. It was postponed to the 17th October, then to the29th December, then to the 11th January 1962 and then to the 22ndFebruary 1962. On that day the respondent again gave evidence asdid his brother. On the evidence the Magistrate decided to assumejurisdiction. The accused pleaded Not Guilty. The further trial wasfixed for the 17th April 1962. The date was re-fixed for the 11th May.On that day the respondent again gave evidence as did his wife and hisbrother and other witnesses. The trial was resumed on the 9th June 1962when other evidence for the prosecution was given. The trial wasresumed on the 21st June 1962 when the first two accused gave evidence.The trial was resumed on the 5th July. The case eventually reachedthe stage of judgment on the 12th July 1962. The first accused wasacquitted altogether. All the other accused were found Guilty of thefirst seven charges. The appellant alone was found Guilty of the eighthcharge. The appellant and one other (the fourth accused) were foundGuilty of the ninth charge. The appellant was acquitted of the tenthcharge. The appellant was sentenced to three months’ rigorousimprisonment on each of Charges one to nine but the sentences were torun concurrently.
It is not necessary to record fully the conclusions of fact reached by thelearned Magistrate. Suffice it to say that he found that some two daysbefore the 27th December 1960 the respondent had assaulted one of theaccused because of certain unseemly behaviour on the latter’s part. The
2*a 7015 (6/65)
learned Magistrate found that the fact that there had been such assaultwas the motive for a concerted attack on the respondent on the 27 thDecember by the second to the sixth accused. They had purposely goneto the respondent’s house in order “ to teach him a lesson The learnedMagistrate therefore rejected the evidence of the appellant (the secondaccused) to the effect that he had only been engaged upon a legitimate raidin connection with his duties as an officer in the Excise Department. Theconclusion was that the accused who were convicted planned and carriedout a concerted assault on the respondent in retaliation for an incidentconnected with one of their number.
The appellant and others appealed to the Supreme Court. By ajudgment of the 6tb May 1963 T. S. Fernando J. dismissed the appeals.Of the points argued in the Supreme Court on behalf of the appellant theonly one which is now material was that there had been a misjoinder ofcharges in that charges based on the existence of an unlawful assemblyhad been joined with charges framed relying on section 32 of the PenalCode.
Certain sections of the Penal Code call for notice. Section 32 is asfollows :—
“ When a criminal act is done by several persons in furtherance ofthe common intention of all, each of such persons is liable for that actin the same manner as if it were done by him alone.”
Section 140 is as follows :—
“ Whoever is a member of an unlawful assembly shall be punishedwith imprisonment of either description for a term which may extendto six months, or with fine, or with both.”
Section 146 is as follows :—
“ If an offence is committed by any member of an unlawful assemblyin prosecution of the common object of that assembly, or such as themembers of that assembly knew to be likely to be committed in prosecu-tion of that object, every person who, at the time of the committing ofthat offence, is a member of the same assembly is guilty of thatoffence. ”
For the purposes of sections 140 and 146 the word “ offence ” denotes athing made punishable by the Penal Code (see section 38).
Certain sections of the Criminal Procedure Code also call for notice*Section 178 is as follows :—
“ For every distinct offence of which any person is accused there shallbe a separate charge and every such charge shall be tried separatelyexcept in the cases mentioned in sections 179, 180, 181, and 184, whichsaid sections may be applied either severally or in combination.”
Section 180 is as follows :—
** (1) If in one series of acts so connected together as to form thesame transaction more offences than one are committed by the sameperson he may be charged with and tried at one trial for every suchoffence, and in trials before the Supreme Court or a District Courtsuch charges may be included in one and the same indictment.
If the acts alleged constitute an offence falling within two or moreseparate definitions of any law in force for the time being by whichoffences are defined or punished the person accused of them may becharged with and tried at one trial for each of such offences, and intrials before the Supreme Court or a District Court such charges maybe included in one and the same indictment.
If several acts, of which one or more than one would by itself orthemselves constitute an offence, constitute when combined a differentoffence the person accused of them may be charged with and tried atone trial for the offence constituted by such acts when combined andfor any offence constituted by any one or more of such acts, and intrials before the Supreme Court or a District Court such charges maybe included in one and the same indictment.
Nothing contained in this section shall affect section 67 of thePenal Code.”
Section 181 is as follows :—
“ If a single act or series of acts is of such a nature that it is doubtfulwhich of several offences the facts which can be proved will constitute,the accused may be charged with all or any one or more of such offencesand any number of such charges may be tried at one trial and in a trialbefore the Supreme Court or a District Court may be included in oneand the same indictment ; or he may be charged with having committedone of the said offences without specifying which one.”
Section 184 is as follows :—
“ When more persons than one are accused of jointly committingthe same offence or of different offences committed in the same trans-action or when one person is accused of committing any offence andanother of abetment of or attempt to commit such offence, they maybe charged and tried together or separately as the court thinks fit; andthe provisions contained in the former part of this Chapter shall applyto all such charges.”
For the purpose of those sections “ offence ” means any act or omissionmade punishable by any law for the time being in force in Ceylon.
On behalf of the appellant it was argued in the Supreme Court that thetrial was invalid in that some of the charges were joined with others inviolation of the provisions of the above quoted sections. More specificallyit was contended that even if all the ten alleged offences were committed inthe course of one and the same transaction the joining together at one trialof charges 2, 3 and 4 with charges 5, 6, 7 and 8 amounted to a fatal mis-joinder of charges. That contention was rejected by the Supreme Courtand the appeal was dismissed.
Special leave to appeal was granted to the appellant. The appeal raisesan important issue in connection with the administration of the criminallaw in Ceylon and their Lordships understand that some confusion existsconcerning the law relating to the joinder of charges : indeed there areconflicting decisions in relation to the main point which arises in thisappeal.
The main contention which has been advanced on behalf of the appellantmay be summarised. It is said that though section 146 of the Penal Codecreates a liability on a member of an unlawful assembly for an offencecommitted by another member of such an unlawful assembly in prosecutionof the common object, yet it does not create an offence distinct from theoffence committed by the other member. Accordingly it is said that thoughcertain charges, e.g., the charges in counts 2 and 5 were for the purposes ofsection 178 of the Criminal Procedure Code charges of distinct offenceswhich required separate charges and required separate trials they did notcome within section 180 (1) because they did not for the purposes of thatsection involve “ more offences than one ”. This contention which involvesa reading of the words “ distinct offence ” in section 178 in a different sensefrom the words “ more offences than one ” in section 180 calls for closerexamination. The argument runs as follows. If there is a count chargingan offence say under section 434 read with section 146 then the allegation isthat one or more of those who were members of the unlawful assemblycommitted house trespass with the result that all are vicariously guilty ofhouse trespass : that being so a count under section 434 charging the directcommission of house trespass cannot, so the argument runs, be joined andtried at the same time for that would be a charge of the same offence andthere would not be charges of “ more offences than one ”.
It will be convenient to consider the appellant’s contentions by referenceto some of the counts in the charge. No question arises in regard tocount 1. It alleged a definite offence which was undoubtedly a distinctoffence. It alleged that the accused were members of an unlawfulassembly, i.e., that they were members of an assembly of five or morepersons w hose common object came within one of the objects defined insection 138. The count charged an offence punishable under section 140of the Penal Code. Count 2 alleged an offence punishable undersection 434 read with section 146 of the Penal Code. The allegationwas that all the accused committed house trespass in furtherance of thecommon object of the unlawful assembly. In order to convict theappellant on this count it was necessary to prove that he was a memberof an unlawful assembly, that some member or members of the unlawfulassembly committed the offence of house trespass, and that such offencewas either in prosecution of the common object of the assembly or wassuch as the members of the assembly knew to be likely to be committedin prosecution of that object. Thus if A, B, C, D, E and F are membersof an unlawful assembly which has house trespass in the house of O as
ite object, then if some of them commit house trespass in the house of 0and do it as members of the unlawful assembly and in prosecution of thecommon object all are guilty.
Where there are unlawful assemblies it will often be difficult for theprosecution to be sure at the outset as to which f tots will be clearly proved.
If the prosecution present a case that A, B, C, D, E and F were m jmbersof an unlawful assembly which had house trespass in the house of 0 as itsobject and that some of the members committed house trespass therewould be a charge under section 434 read with section 146. If it wasproved that A committed house trespass but if it was not proved thatthere was an unlawful assembly or if it was proved that there was anunlawful assembly but if it was not proved that A was a member of it,there would have to be an acquittal of A of the charge under section 434read with section 146. He would however have committed an offenceunder section 434. Nevertheless he could not be convicted of suchoffence on the charge as laid. This was illustrated by the decision inThe King v. Ueen Baba1.
In that case the accused were charged (under section 146) with havingcommitted as members of an unlawful assembly, the offences of house-breaking, robbery, grievous hurt and hurt (sections 443, 380, 383, and 382of the Penal Code). The verdict of the jury was that there was nounlawful assembly but that the offences of house-breaking, robbery,grievous hurt and hurt were committed by the accused acting infurtherance of a common intention within the meaning of section 32 of thePenal Code. The presiding Judge had directed the jury that it wascompetent to them to find the accused guilty under sections 443, 380,383 and 382 read with section 32. The jury did so find. The questionfor decision on appeal was whether it was competent for the jury toreturn a verdict of guilty of offences under those sections read withsection 32 when those offences did not form the subject of separatecharges but were referred to in charges coupled with section 146. It washeld (and their Lordships think rightly held) that in the absence of acharge the accused could not be convicted under sections 433, 330, 383and 382 read with section 32. The case does not decide that chargesunder those sections could validly have been joined but the indicationsare that the Court so thought. There was certainly no suggestion thatthe accused could not thereafter be charged with offences under sections443, 380, 383 and 382. Nor could it be said that they had been acquittedof those offences. The missing charges were charges of different offencesand it would be unfortunate and undesirable if in such a situation separateand later proceedings were always necessary.
There is a difference between the situation where someone who is amember of an unlawful assembly commits an offence as such memberand in prosecution of the common object of that assembly and thesituation where someone commits a similar offence without there beingthe existence of an unlawful assembly.
To a like effect as the actual decision in Seen Laba's case is the decisionin anak Chand v. State of Punjab x. (The provisions of section 32 andsection 146 of the Ceylon Penal Code correspond respectively to sections 34and 149 of the Indian Penal Code.)
If fWe or more people are charged in one count -with, an offencepunishable under section 434 read with section 146 and in anothercount with an offence punishable under secton 434 they are being chargedwith what are, for all practical purposes, distinct and separate offences.It would be wrong to regard them as being in reality one offence. Thatthis is so is illustrated by considering the nature and extent of theevidence which could establish guilt in respect of each count. Thus if itwere not established that there was an unlawful assembly (as for exampleif it were not shown that there was an assembly of five or more personsbut only of a lesser number) there could not be a conviction in respect of theformer count but the evidence might establish that house trespass wascommitted by one of them or alternatively bv some of them in further-ance of their common intention in which cases either that one or those ofthem (who might number less than five) w ho had that common intentioncould be convicted of the latter count. Tt is well recognised that section 32of the Penal Code expresses and declares a legal principle of law butdoes not create a substantive offence.
Proof that there was an unlawful assembly might fail for lack of proofthat those composing an assembly of five or more had a common objectwhich was within any one of the requirements of section 13S of the PenalCode. If on the other hand membership of an unlawful assembly wasestablished, and membership at the time that an offence was committedby some member or members in prosecution of the common obiect of theassembly, and if the offence was such as the members of the assembly knewto be likely to be committed in prosecution of the common object, therecould be conviction of a charge of the offence (under its appropriate sectionread with section 146). In such a case it would not however necessarilybe the case that, if the principle of section 32 had to be relied upon, therewoula be a conviction of a charge of the offence. Though the offence wasone known to be likely to be committed in prosecution of the commonobject (see the language of section 146) the criminal act might nothave been done “ in furtherance of the common intention of all ’*(as section 32 requires).
Under section 32 criminal liability results from the doing of a criminalact in f'irtherance of the common intention : under section 146 criminalliability may result merely from the membership of the unlawful assembly
1 A. I. R.  S. C. 27i.
at the time of the commission of an offence known to be likely to becommitted in prosecution of its object. As was said in Nana« Chand v.Slate of Punjab (supra) “ An offence may be committed by a member of anunlawful assembly and the other members will be liable for that offencealthough there was no common intention between that person and othermembers of the unlawful assembly to comn it that offence provided theconditions laid down in the section are fulfilled. Thus if the offencecommitted by that person is in prosecution of the oommon object of theunlawful assembly or such as the members of that asseml'Jy knew to belikely to be committed in prosecution of the common object, everymember of the unlawful assembly would be guilty of fhat offence althoughthere may have been no common intention and no participation by theother members in the actual commission of that offence. ”
In delivering the judgment of the Boaid in Barencra Kumar Gh sh v.Emperor1 Lord Sumner said (at page 7) :—“ There i3 a difference betweenobject and intention, for, though their object is common, the intentionsof the several members may differ and indeed may be similar only inrespect that they are all unlawful, while the element of participation inaction which is the leading feature of section 34 is replaced in section 149by membership of the assembly at the time of the committing of theofferee. Both sections deal with combinations of persons, who becomepunishable as sharers in an offence. Thus they have a certain resem-blance and may to some extent overlap, but section 149 cannot at anyrate relegate section 34 to the position of dealing only with joint action bythe commission of identically similar criminal acts, a kind of case whichis not in itself deserving of separate treatment at all.”
In Don MartTielis v. The Queen 2 there were certain counts which werebased on the allegation of unlawful assembly and certain other countswhich related to the offences of causing simple hurt and committing mis-chief which were based on common intention. Crown Counsel in that caseconceded that the joinder of the two sets of charges was not according tolaw and that the result was that the indictment was invalid. Acceptingthe concession of Crown Counsel the Court quashed the convic tions.
In the present case T. S. Fernando J. felt himself free not to followDon MarihAi*' case. Their Lordships consider that he was right in notfollowing it. He did however point out that the effect of joining chareeamust be understood as limited by the provisions of section 67 of the PenalCode.
It follows from v hat their Lordships have set out that they are unableto agree with the decision in The Queen v. ThumbipiUai x.
In the present case five of the accused (the appellant and four others)have been held guilty of house trespass. They have been held guilty ofbeing members of an unlawful assembly the common object of which was tocommit house trespass. Each one was therefore guilty under count 2 ofthe offence of house trespass at any rate as committed by the other fourwhile being separately guilty under count 5 of the distinct and separatehouse trespass which he personally committed.
In passing their Lordships would observe that the wording employed inthe opening part of count. 2 viz. “ you did in the prosecution of the saidcommon object …. ” is perhaps inappropriate where section 146
is being invoked. The wording employed in count 4 incorporating, in theopening part, the wording “ one or more members of the said unlawfulassembly did ” etc. and concluding “ and that you ” etc. would seem totheir Lordships to be more appropriate.
For the reasons which have been set out their Lordships conclude that acount for an offence punishable under section 434 read with section 146 anda count for an offence punishable under 434 are counts which accuseof distinct offences. If section 178 did not set out exceptions there wouldhave to be separate charges and separate trials. One exception to thatrequirement is contained in section 180. The opening words of thatsection are “ If in one series of acts so connected together as to form thesame transaction more offences than one are committed by the same personhe may be charged ….” Whether a person has in fact committed
an offence which he does not admit is the very question with which a trialis concerned. Their Lordships consider therefore that it cannot bedoubted that the words “ more offences than one are committed ” mustmean and must be understood as meaning more offences than one arealleged to have been committed.
Their Lordships are quite unable to accept the submission that a chargeof an offence punishable under section 434 read with section 146, and acharge of an offence punishable under section 434, relate to the sameoffence so as to make inapplicable the exception (set out in section 180(1)) which applies if in one series of acts so connected together as toform the same transactions more offences than one are alleged to have beencommitted by the same person.
In the present case their Lordships consider that the offences if com-mitted were committed “ in one series of acts so connected together as toform the same transaction ” within the meaning of the words in section180 (1). It is a question for decision in any particular case whether thefacts out of which charges have arisen are so closely connected and inter-related that it can fairly be said that there was one series of acts and thatthe acts by being connected constituted one and the same transaction. Itfollows therefore as was decided by the learned Judge, T. S. Fernando J,that there was no misjoinder of charges.
This conclusion suffices to dispose of the appeal and their Lordshipswill humbly advise Her Majesty that it be dismissed. Their Lordshipsthink that it is desirable that they should refer to one matter which wasdiscussed in the course of the arguments. They would preface thisreference by a reminder that the reaching of conclusion without any avoid-able delay and the concentration upon issues of real relevance (both sodesirable in criminal administration) are greatly assisted if those res-ponsible for prosecutions make every reasonable effort to minimise thenumber of counts and to avoid complexity.
One matter in particular to which reference may be made relates to thedecisions of the learned Magistrate on counts 4 and 8. For the reasonsalready expressed their Lordships have concluded that the joinder of thosecounts was unobjectionable. It was submitted however that there oughtnot to have been findings of guilt against the appellant on both counts 4and 8. The finding of the learned Magistrate in regard to count 8 (whichcharged all the accused with voluntarily causing hurt to the respondent, anoffence punishable under section 314) was that the appellant alone (andnot the others) was guilty. The appellant was also (together with theother accused except the first) found guilty on count 4. That count whichalleged an offence under section 314 read with section 146, alleged thecausing of hurt to the respondent and his brother and his wife. As to thatthe finding of the learned Magistrate was thus expressed—“ The 2nd, 4thand 5th accused have, whilst being members of an unlawful assembly,caused simple hurt to Ariyadasa and Gomis and thereby all the members ofthe unlawful assembly have been guilty of an offence under section 314read with section 146 of the Penal Code”. That was a reference to count 4.There can be no criticism of the finding or of the conclusion that allwere guilty. In view of the finding just quoted it is not clear why on the8th count the finding was that it was only the 2nd accused (the presentappellant) who assaulted Ariyadasa and who alone was therefore guilty onthe 8th count. It was suggested that it was erroneous for the appellantto have been convicted on the 8th count as well as on the 4th count. Evenaccepting however that he alone was guilty on the 8th count he wv? alsoguilty on the 4th count if any one of the others caused hurt to Gomis.The 4th accused was in fact held guilty of causing hurt at least to Gomiseven if, contrary to the finding above quoted, he did not additionally causehurt to Ariyadasa.
On the conclusions of the learned Magistrate his findings of guilt asrecorded cannot therefore be assailed.
The question which was discussed in argument was as follows. If in a casewhere five or more persons are charged with an offence under section 140and are also charged in a further count with an offence punishable under asection of the Penal Code read with section 146 and are also charg d inanother count with the offence punishable under the particular section it isfound that only one of the persons charged actually committed the offencepunishable under the particular section, ought he to be found guilty (apartfrom secton 140) on more than one of the two other counts ? Thus if fiveor more persons form an unlawful assembly the object of which is to com-mit house trespass they are all guilty of an offence under section 140.They may additionally be charged with an offence under section 434 readwith 146. They may additionally be charged with an offence undersection 434. If when the facts are ascertained it is found that one only ofthe group actually committed house trespass the question arises as to thecorrect findings in his case. All are guilty of the offence under section 140.All are guilty of the offence under section 434 read with section 146. Insome circumstances and upon certain findings they might (as a result ofthe provisions of section 32) be guilty of the offence under section 434.The actual house trespasser would be guilty of the offence under section 434.AH would undoubtedly bo guilty of two offences but the question ariseswhether the actual house trespasser should be found guilty of all threeoffences and whether (in certain circumstances) all the others might befound guilty of all three offences. The problem may be merely academicand so far as sentence is concerned may be of no consequence. TheirLordships would think it preferable that guilt on two only and not on allthree of the counts should be recorded but as the point has not arisen andas their Lordships accordingly cannot have the benefit of the consideredviews of the Court in Ceylon upon it and as it does not immediately arisetheir Lordships consider that they must reserve consideration of it.
For the reasons already given their Lordships will humbly adviseHer Majesty that this appeal should be dismissed.
A. K. A. M. KHAN, Appellant, and M. M. G. ARIYADASA, Respondent