* {1911) 14 -N. L. R. 238.
( 223 )
pleaded the conviction under section 157 of the Penal Code as abar to the present prosecution. The learned Magistrate over-ruiedthe objection, and after trial convicted the seven assused. Theyappealed.
Briastngham, for the appellants.—The accused have already beenconvicted of having committed an affray. They were charged withhaving committed an affray, as they had fought in a public road.It is not open to the complainants to charge the others who tookpart in the affray with having caused hurt to them. It was becausethe complainants and accused had caused hurt to each other on apublic place thajb they were prosecuted for affray. Section 8 of theInterpretation Ordinance, No. 21 of 1901, provides that where anyact or omission constitutes an offence under two or more laws, the *offender shall be liable to be prosecuted and punished under eitheror any of those laws, but shall not be liable to be punished twicefor the same offence. The offence of fighting on the road is anoffence falling under two sections, viz., section 157 of the PenalCode and section 314 of the Penal Code. Fighting, when it takesplace on a public place, is an offence under section 157; but when ittakes place elsewhere is an offence under section 314 (hurt) or undersection 340 (criminal force). It is repugnant to the provisions ofsection 8 to prosecute the accused under section 314 after -havingpunished them for substantially the same offence under section 157.See Modder v. Perera. 1 To constitute affray both parfise shouldhave caused hurt or used criminal force to each other. See Bandav. Cklliah. 2
Arulanandtam, for the respondent, not called upon.
March 23, 1914. Lascelles C.J.—
This is an appeal against the conviction of the seven accused in acharge of hurt, the conviction being on the complaints of threecomplainants. It appears that all these ten persons had previouslybeen convicted of the offence of 'causing an affray, and it is nowargued on behalf of the appellants that their conviction in theprevious case is a bar to the present conviction. The law on thematter is clearly laid down in sub-section (2) of section 330 of theCriminal Procedure Code. The section is as follows:—“ A personacquitted or convicted of any offence may be afterwards tried fofcany distinct offence for which a separate charge might have beenmade against him on the former trial under sub-section (1) ofsection 180, ” which section deals with the joinder of charges. Thequestion then is whether, on the former trial, the accused mighthave been charged with • assaulting the three complainants inaddition to the charge of affray. There can be no doubtr but that
1 (1913) 16 N. L. B. 37.2 2 Leader 123.
Avaliyd v.Khan
( 224 )
1814. this question should be answered in the affirmative. The chargesou* oi the same transaction, and they could have been;C.J. joined in the 6ame charge. So far the matter seems absolutelyAvaliya». clear. Then I am referred to section 8 of the Interpretation .Ordi-Khannance of 1901 and the case of Modder v. Perera. 1 Section 8 of the
Interpretation Ordinance provides that where any act or omissionconstitutes an offence under two or more laws, – the offender isliable to be prosecuted under either of the laws, but he shall not bepunished twice for the same offence. Now, in order to render thissection applicable to the present case, one has to assume that the.offence of affray is the same or substantially the same as the offenceof hurt. This obviously is not the case. The element of hurt isnot a necessary ingredient in the offence of affray. You may havean affray without any hurt being caused at all- The essence of anaffray is fighting, which is a disturbance of the public peace. Itseems to me that these two offences are essentially different, andthat the conviction in the former case is not a bar to the convictionin the latter case.
The appeals are dismissed.
Appeals dismissed.
• (1913) 16 N. L. B. 87.