086-NLR-NLR-V-57-EDWIN-SINGHO-Appellant-and-S.-I.-POLICE-KADAWATTA-Respondent.pdf
1956Present : Sansoni, J.EDWIN SINGHO, Appellant, and S. I. POLICE,KADAWATTA, Respondent
S. C. 171—M. G. Gampaha, 24,378
Charge—Alternative charge—Duplicity—Particulars of offence—.Motor Traffic Act
Xo. 11 of IOC 1, ss. 153 (4), 153 (3), 210 (1), 210 (2)— Criminal Procedure Code
s. 1G0-
Thc accused was charged and convicted on two counts, viz., (I) with havingdriven a motor eW>* recklessly or in a dangerous manner or at a dangerous speed,in breach of section 153 (2) of the Motor Traffic Act, (2) with having driven thesame bus negligently or without reasonable consideration for other personsusing the highway, in breach of section 153 (3) of tho Motor Traffic Act.
Held, that the charges framed in the alternative wero bad for duplicity.
Sansoni, J.—“ I think tho matter goes beyond the question of the accusedbeing prejudiced by having to face a count which involves many different offencesframed in the alternative : the more important consideration is that it is notclear, upon a conviction or an acquittal, of what offence ho has been foundguilty or acquitted. ”
Held, further, that, under section 16D of the Criminal Procedure Code, parti-culars setting out the details of each offence should have been mentioned in thecharge.
A
XJlPPEAL from a judgment of the Magistrate’s Court, Gampaha.
Frederick IV. Obeyesekere, for the accused-appellant.
If. de Alwis, Crown Counsel, for the Attorney-General.
Cur. adit. vult.
March 6, 1936. Sansoxi, J.—
The accused-appellant- was charged on two counts :
That- he “ did on lGth April, 1935, at Kadawatta, being the driverof bus % 6730, on a highway, to wit, the Colorabo-Kandy road drive thesaid motor bus recklessly or in a dangerous manner or at a dangerousspeed in breach of S. 153 (2) of the Motor Traffic Act No. 14 of 1931, andthereby committed an ofTence punishable under S. 219 (I} of the said Act.
At the same time and place aforesaid …. drive the said bus ….negligently or without reasonable consideration for other persons usingf he highway in breach of S. 153 (3) of 1 lie said Act, and thereby commit 1 edan otTenee punishable under S. 219 (2) of the said Act.”
After trial the learned Magistrate convicted the accused on both countsand lined him Its. 100 on the first count and Its. 30 on the second count.
The chief witness for the prosecution said that when he had halted hisear near the 14th milepost on the Colombo-Kandy road behind anothercar, the accused’s bus came from behind him, flashed past him, overtookbotli ears and proceeded : at that- time a lorry came from the oppositedirection and the lorry driver had to swerve to his left to avoid a collisionwith the accused's bus. The witness further said that lie followed the bus,rbiving at- about 40 to 45 m.p.li., and was just able to get close enough tonote the number of the bus.
The next incident which the same witness spoke to seems to havehappened about three miles from where the first incident took place.The accused’s bus overtook another vehicle while a car was coming fromthe opposite direction. The driver of that car had to drive on to the grassverge in order to avoid a collision. The witness complained at theKadawatta Police Station, which is between the 9th and 10th mileposts.
Another witness called for the prosecution spoke to a third incident.He said that when he was standing outside his house, which is about1) 4 mile on the Colombo side of the Kadawatta Police Station, he saw thisbus being driven very fast round a bend.
The accused gave evidence on his own behalf. He said that the 14thmilepost is at Imbulgoda while Kadawatta is at the 101 h milepost-. Hoalso said that lie had been driving buses for eighteen years and had neverbeen convicted of any offence. He was definitely of the view that thisparticular bits was so old that it could not be driven at more than 20 to25 m.p.li., and if it- was driven faster it *' will come out in pieces ”—to usehis own words.
The learned Magistrate has accepted the evidence of the chief witnesscalled for the prosecution, in preference to that given by the accused.He rejected the evidence of the other prosecution witness.. I see. noreason to interfere with his findings on the questions of fact.
Sir. Obeyesekcra raised certain legal objections to the charge itself.He submitted.
that the charges which were framed in the alternative were bad ;
2. tliat no particulars were furnished ;
.*1. that flic place.of the alleged offences was wrongly set out in thecharge..
Willi regard to tlie* first objection, it is clear that the charges framedin the alternative are. had for duplicity. The first count is in respect ofthree different offences, while the second count is in respect of two differentoffences. It was held in Police Sergeant, Lindula v. Stain rt 1 and in S. I.,Police, Dehioicita v. J. JV. Perera 2 by Jaycwardcna, A..T., that chargessimilar to the one in question were bad for duplicity, blit lie licit! that theirregularity may he cured under 8. 42o of the Criminal Procedure Codeif the accused has not been prejudiced, hi the later case of Pakir Saibnv. jTayarn, Wijeycwardcne, J., also dealt with a case of duplicity, but didnot say whether such duplicity was fatal. On the other hand, Schneider,A.-T., in Abeyasuriya v. Jayasekera 4 seems to have been of the opinionthat- a charge which included several distinct offences was illegal.
Til England the Court of Criminal Appeal has consistently quashed aconviction which followed upon a charge which was bad for duplicity.Jn It. v. Wilmol 3 the accused was convicted on a count in an indictmentwhich charged him with having driven a motor vehicle ” recklessly or ata speed or in a manner which was dangerous to the public having regardto all tlic'cire-umstanccs of the case ”. In appeal, the objection was takenthat- the count was had for duplicity. In upholding the objection andquashing the conviction Lord Hewart, L.C.-T., followed the decision inIt. v. Surrey Justices, ex parte- Wither id 6 where a conviction of an accusedcharged with having driven a motor vehicle 'c without due care andattention or without reasonable consideration for other persons using theroad ” was quashed. Tire ratio decidendi was set-out- in the judgment ofAvory, ,J., who said : “ It is an elementary principle that ail informationmust not charge offences in the alternative, since the- defendant cannotthen know with precision with what he is charged and of what he isconvicted and may he prevented on a future occasion from pleadingautrefois convict ”. Eord Hewart- in the Inter ease said that there is aduty east on the Court in the interests of justice to quash the convictionin such a ease even though the point was not taken at- the trial.
In my view the conviction of the accused in this case should be set-aside on this objection alone. I think the matter goes beyond the questionof the accused being prejudiced by having to face a count which involvesmany different offences framed in the alternative : the more importantconsideration is that it is not clear, upon a conviction or an acquittal, ofwhat offence he has been found guilty or acquitted.
With regard to the second objection taken by Mr. Obeysckcra, I thinkthis is a ease where particulars setting out the details of each offence shouldhave been mentioned in the charge. The need for this was all the greaterbecause the prosecution led evidence of three separate incidents at threedifferent places on this highway, and in fairness to the accused he should
' (1023) 25 X. It. ICG.= (102G) 27 X. L. It. oil.3 (1040) 42 X. L. It. 151.
1 {10-21) 22 X. L. 11. 3S0.
(10-3-1) 24 Cr. App. H. 01.
• (1932) 1 K. 13. 450.
have been given particulars of the manner in which the alleged offenceswere committed ” under S. 1 GO of the Criminal Procedure Code. Thefailure to do so has, in my opinion, occasioned a failure of justice.As a matter of practice such particulars are always stated in indict-ments and I have no doubt they are often stated in charges framed inMagistrate's Courts ; see, for instance, Lourcnsz v. Yyramudii *.
The third objection taken on behalf of the accused is in a mannerconnected with the second objection. In both counts the place of offenceis mentioned asKadawat-ta. The evidence disclosed that the prosecutionwas relying on acts of bad driving at three different, places, only the lastof which appears to have been Kadawatta itself. No indication of thiswas given to the accused, who may well have been misled as to the casewhich the prosecution intended to present against him. He was entitledto sufficient notice of that ease, and such particulars as to the place ofthe offence as were given were inadequate if not misleading.
Nor these reasons T set aside 1ho conviction of the accused and acquit,
him.Conrictinn srl tositip.