005-NLR-NLR-V-65-B.-DON-MARTHELIS-and-others-Appellants-and-THE-QUEEN-Respondent.pdf
Don Marthelia v. The Queen
19
1963Present: Herat, J., and Abeyesundere, J.DON MARTHELIS and others, Appellants, and THE QUEEN,Respondent
S. C. 5-10/62—.D. C. {Grim.) Colombo, N2055/33289/CIndictment—Unlawful assembly—Joinder of counts based on unlawful assembly withcounts based on common intention—Validity—Criminal Procedure Code,88.178-181, 184.
Counts baaed on the allegation of unlawful assembly cannot be joined in thesame indictment with counts baaed on common intention. 1
1 (1954) 56 N. L. R. 243.
20Banda «> Parma
ii
v.
Appeal from a judgment of the District Court, Colombo.
Colvin B, ie. Silva, with D. S, Wijesinghe, for the Accused-Appellants.
P.Colin-Thome^ Crown Counsel, for the Attorney-General.
March 19, 1963. Absybseetdskb, J.—
Of the thirteen accused in this case, the 1st, 4th, 5th, 6th, 9th, and 11thaccused were convicted on all the nine counts in the indictment andsentenced to various terms of imprisonment which in respect of eachaccused aggregated to fifteen months’ rigorous imprisonment. Theconvicted accused have appealed from their convictions and the sentencespassed on them. Dr. Colvin R. de Silva, who appeared for the accused-appellants, argued that the indictment was invalid by reason of themisjoinder of charges. Counts (1) to (5) were based on the allegationof unlawful assembly and counts (6) to (9) which related to the offencesof causing simple hurt and committing mischief were based on commonintention. Section 178 of the Criminal Procedure Code requires everycharge to be tried separately except in the cases mentioned in sections179, 180, 181 and 184 of that Code. Crown Counsel who appeared for theAttorney-General conceded that none of the four last-mentioned sectionsapplied to the counts in the indictment in this case. The joinder of thetwo sets of charges referred to above is therefore not according to law.Consequently the indictment is invalid. We quash the convictions ofthe accused-appellants and order that they be discharged.
Herat, J.—I agree.
Convictions quashed.