BASNAYAKE, C.J.—Attorney-General v. Easkaran
Present : Basnayake, C.J.ATTORNEY-GENERAL, Appellant, and BASKARAN, Respondent
S. C. 33—M. C. Point Pedro, 4801
Criminal procedure—Charge—Duty of Magistrate to frame charge in a summarycase—Joinder of charges—Effect thereon of Interpretation Ordinance, s. 9—Criminal Procedure Code, ss. 172, 187—Penal Code, s. 409—Motor TransportAct, No. 48 of 1957, s. 84 (2)—Motor Traffic Act, No. 14 of 1951, s. 226.
The obligation of framing the correct charge or charges in a case summarilytriable is one that rests on the Magistrate. Where, therefore, the Magistraterefuses to frame charges in the terms suggested by the prosecution, it is hisduty to frame the correct charge.
The rule laid down in section 9 of the Interpretation Ordinance, that when-an act or omission constitutes an offence under two or more laws the offenderis liable to be prosecuted under either or any of those laws but shall not beliable to be punished twice for the same offence, applies to offences whichthough punishable under different laws consist of the very same ingredients.It is designed to prevent a person being punished twice for the same offenceand does not, therefore, concern the trial of more than one offence at thesame trial.
The accused, who was alleged to have defaced the identification plates of an•omnibus and obscured a part of them, was charged with having committedthree offences, viz. :—(1) under section 409 of the Penal Code, (2) under section84 (2) of the Motor Transport Act, and (3) under section 226 of the MotorTraffic Act.
Held, that section 9 of the Interpretation Ordinance was not a bar to theprosecution of the accused under each of the laws referred to in the respectivecharges.
j^^PPEAL from a judgment of the Magistrate’s Court, Point Pedro.
Ananda Pereira, Senior Crown Counsel, with V. S. A. PuLlenayegwm,Crown Counsel, for Complainant-Appellant.
No appearance for Accused-Respondent.
Cur. adv. vzdt.
July 17, 1959. Basnayake, C.J.—
This is an appeal by the Attorney-General. Proceedings were institutedon 13th May 1958 on a written report under section 148 (1) (6) of theCriminal Procedure Code by Inspector of Police Rajasundaram. Thereport alleged that the accused committed offences punishable undersection 409 of theoPenal Code, and section 84 (2) of the Motor TransportAct, No. 48 of 1957, and section 226 of the Motor Traffic Act, No. 14of 1951.
BASNAYAKE, G.J.Attorney-General v. BaeJearan05
On that day summons was issued on the accused- He appeared on27th May 1958. But no evidence was recorded till 8th July 1958 as thewitnesses for the prosecution were not present, when after recording theevidence of Police Constable Kandiah the Magistrate, without readingthe statement of particulars of the offences contained in the summons,as he was entitled to do under section 187 (2), framed the followingcharges against the accused :—
“ You are hereby charged, that you did, within the jurisdictionof this Court, at Pt. Pedro, on 30th April 1958—
Bid with intent to cause knowing that he was likely to causewrongful loss or damage to Ceylon Transport Board did cause changein omnibus No. 33 <§ 1177 property of the Ceylon Transport Boardby obliterating the letter c§ on the identification plates of the saidomnibus so as to diminish the value or utility thereof and that he didthereby commit mischief an offence punishable under section 409 of thePenal Code.
At the same time and place aforesaid and in the course of the
same transaction the above named accused did wilfully deface theidentification plates of the aforesaid omnibus No. 331177 of the
Ceylon Transport Board and he is thereby guilty of an offencepunishable under section 48 (2)—(sic)—of the Motor Transport ActNo. 48 of 1957.
At the same time and place aforesaid and in the course of thesame transaction the above named accused did obscure a part of thefront and rear identification plates of motor vehicle to wit the afore-said omnibus No. 33 <§ 1177 by the application of paint thereofin contravention of section 24 (2) of the Motor Traffic Act No. 14 of1951 and that he is guilty of an offence under section 216 (1) (a) ofthe Motor Traffic Act No. 14 of 1951 punishable under section 226 ofthe said Act.
The accused pleaded not guilty and the case was fixed for trial. On29th September 1958 when the case came up for trial Crown Counselwho appeared for the prosecution moved to amend the charges and sub-mitted the following charges in substitution of those read to the accusedon 8th July 1958 :—
** You are hereby charged, that you did, within the jurisdiction ofthis Court, at Pt. Pedro, on 30th April 1958— 1
1.You with intent to cause or knowing that you were likely tocause wrongful loss or damage to the Ceylon Transport Board didcommit mischief by obliterating the Sinhala Better Sri on the identi-fication plates of omnibus No. 331177 so as to dimmish the value
or utility of the said omnibus and that he (sic) has thereby committedan offence punishable under section 409 of the Penal Code.
BASNAYAKJE, C.J.—Attorney-General v. Baskaran
That at the time and place aforesaid and in the course of thesame transaction you did wilfully deface the identification plates ofomnibus No. 33 <§ 1177 of the Ceylon Transport Board by obliteratingthe Sinhala Letter Sri on the said identification plates and that youare thereby guilty of an offence punishable under section 84 (2) of theMotor Transport Act No. 48 of 1957.
That at the time and place aforesaid and in the course of thesame transaction you did obscure a part of the front identification plateof a motor vehicle to wit omnibus No. 33 <§ 1177 by obliterating theSinhala letter Sri thereon in contravention of section 24 (2) of theMotor Traffic Act No. 14 of 1951 and that you are thereby guilty of anoffence punishable under section 226 read with section 216 (1) (a) ofthe said Motor Traffic Act.
That at the time and place aforesaid and in the course of the
same transaction you did obscure a part of the rear identificationplate of a motor vehicle to wit omnibus No. 331177 by obliterating
the Sinhala letter Sri thereon in contravention of section 24 (2) of theMotor Traffic Act No. 14 of 1951 and that you are thereby guilty of anoffence punishable under section 226 read with section 216 (1) (a) ofthe said Motor Traffic Act.
Counsel for the accused objected to this application, basing his objec-tion on section 9 of the Interpretation Ordinance. Crown Counselthen moved for time to cite authorities and the trial was postponedfor 8th November 1958.
On that day the Magistrate after hearing counsel for the prosecutionand the defence refused the application of Crown Counsel to amendthe charges and called upon the prosecution to elect which of the threecharges 6et out in the report under section 148 (l)(fr) he meant to proceedwith. Crown Counsel then drew the attention of the Magistrate tosection 187 of the Criminal Procedure Code and submitted that the func-tion of framing the proper charges against an accused person was vestedby the Criminal Procedure Code in the Magistrate, and invited him toframe the correct charges, if the charges already framed by his pre–decessor were wrong, and said he was willing to lead evidence in supportof the altered charge or charges framed by him. This the Magistrate•declined to do. In the course of his order he said :
“ The Crown Counsel states that he is not electing to proceed withanyone of the charges but wants the Court to frame the charge. Theframing of such a charge has not become necessary after the accusedhad already been charged on 8.7.58. This Court is not a prosecutingCourt as in the case of non-summary offences. The Court as a Courtof summary trial cannot with reason tell the accused that he shall:face this charge and no other when all the charges as they stand areon the same set of facts.
BASNAYAKE, C.J.—Attorney-General v. Baskaran
“ In view, therefore, of the position taken by Mr. Tittawella, that heis not electing to proceed with anyone of the charges, I take it thathe does not desire to place any evidence before Court for the trial of-this accused in respect of anyone of the. charges to which the accusedhad pleaded not guilty. In these circumstances I have no alternativebut to acquit and discharge the accused. I make that order.accordingly.”
The present appeal is from this order. The learned Magistrate wasclearly wrong in acquitting the accused in the instant case. If on the sub-missions made by defence counsel he formed the opinion that the chargesframed and read to the accused by his predecessor on 8th July1958 needed alteration he should have altered them in the exercise of thepowers vested in him by section 172 of the Criminal Procedure Codeand proceeded with the trial. He acted wrongly in refusing to do sowhen Crown Counsel suggested that course and offered to place before-the Court the available evidence on the charges as altered by him. Thestatutory obligation of framing the correct charge or charges in a casesummarily triable is one that rests on the Magistrate. His actionin asking the Crown Counsel to elect on which charge he proposes toproceed is not warranted by any provision of the Criminal ProcedureCode.
The only question that arises for decision in this appeal is whethersection 9 of the Interpretation Ordinance is a bar to a prosecution of theaccused under each of the laws referred to in the respective charges.That provision is designed to prevent a person being punished twice forthe same offence. It does not concern the trial of more than one offenceat the same trial. That is a matter regulated by the Criminal ProcedureCode. The rule laid down in section 9 is that when an act or omissionconstitutes an offence under two or more laws the offender is liableto be prosecuted under either or any of those laws but shall not be liableto be punished twice for the same offence.
Now in the instant case the accused is charged with committing theoffence of mischief an offence punishable under section 409 of the Penal•Code. The elements of that offence are—
(а)an intent to cause, or a knowledge that he is likely to cause, wrongful
loss (i.e. loss by unlawful means of property to which the personlosing it is legally entitled—section 21 (2), Penal Code),
(б)causing the destruction of any property, or any such change in
any property, or in the situation thereof as destroys ordiminishes its value or utility or affects it injuriously.
He was also charged (i) with wilfully defacing the identification platesof an omnibus No. 331177, and (ii) with obscuring a part of the iden-
tification plates of that omnibus. The elements of each of these offencesare not exactly the same. The prosecution is not seeking to have theaccused punished twice for the same offence. It is seeking to have himtried for more than one offence at the same trial. That is, as I' have
BASNAYAKE, O.J.—Kumaraaamy v. Banda
already stated, a matter regulated by the Criminal Procedure Code. Foran act to constitute an offence under a law it must satisfy the requirements-of that law. Section 9 therefore applies to offences which though punish-able under different laws consist of the very same ingredients. The viewI have taken is in accord with that taken by this Court in the case ofthe King v. Haramanis1.
quash the order of acquittal and direct the Magistrate to proceedwith the trial on the charges framed by his predecesssor and read to-the accused on 8th July 1958 altering them where, in the exercise of thediscretion vested in him by section 172 of the Criminal Procedure Code,,he thinks it necessary to do so, either ex mero motu or on the applicationof the prosecution.
Acquittal set aside*
ATTONEY -GENERAL , Appellant, and BASKARAN , Respondent