229—P. 0. BadvUa, 1,367.
Affray—Persons charged together—Legality—Criminal Procedure Code.
Two persons who are charged with committing an affray maybe tried together in the same proceedings.
piASE referred by Jayewardene A.J. to a Bench of three Judgeson the question whether two persons who are chaiged withcommitting an affray may be tried together.
Garvin, for appellant.—Two opposing factions cannot be chaigedtogether in the same proceedings. Illustration (d) of section 184of the Criminal Procedure Code supports this view.
It has been held in numerous decisions of the Supreme Courtthat it is a- fatal irregularity to charge members of opposing factionsin the same proceedings. The reason being that a conflict ofdefences may result if such procedure is adopted. Opposing factionshave conflicting interests. (Vdaiden v. Zoysa1; Keegal v. Mohideen.2)
An affray is only created by two factions, and it requires twoor more persons to create a faction. (Police Officer v. Dineshamy.8)
Counsel contended that the principle of these decisions wereapplicable to the present case in that the illustration (d) of section184 of the Criminal Procedure Code had been held to be applicableto case of affray.
Basnayake (Acting C. C.), for respondent.—The offence of affraymust have the following ingredients :— _
That two of more persons were fighting.
That the fighting was ip a public place.
That the fight disturbed the public peace.
See Gour, vol. /., p. 88S, ed. 1928.
The essence of the offence is “ A breach of the King’s peace.”In a charge for the offence of affray the extent of the injuries,the person who initiated the affray by striking the first blow doesnot matter. The moment the King’s peace is disturbed by twoor more persons fighting in a public place the offence is committed.
Two persons jointly commit one offence. In the ease of a riottwo opposing factions do not always exist. A riot can be committedby one party who have made up their minds to commit the offence.
1 (1910) 14 N. L. R. 140.
* 5 C.W. B. 162.
* 21N.L R. m.
73. N. 9487 (11/46)
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Premeditation is not needed to constitute the offence of affray.Whether a person acted in self-defence or not, when attackedsuddenly in a public place, does not enter into the decision of thequestion as to whether an afiray was committed.
There is no direct authority to the effect that persons committingan afiray cannot be charged together under section 156.
English practice is to charge persons committing an affray inthe same indictment. See Russell on Crimes and Misdemeanour.
July 30,1928. Fisher C.J.—
In this case the appellant and another man were convicted ofcommitting an' affray under seotion 157 of the Ceylon Penal CodeThey were tried together, and it is contended on their bebalf thatthe conviction is bad on that ground: The appeal originally camebefore Jayewardene A.J., who in view of the case of Abeyewardene .c. Fernando et al? reserved the question for the decision of threejudges.
The facts in the present case seem to be very similar to thosein the case referred to in which two rival boutique-keepers werebound over to keep the peace under section 81 of the CriminalProcedure Code. The point was taken that they must be treatedas members of opposing factions, and therefore not triable together,and Sir Anton Bertram C.J. feeling himself bound by the decisionsin Velaiden v. Zoysa? Wickremesuriya v. Don Lewis? Keegal v.Mohideen and others? and Police Officer v.. Dineshamy et al?reluctantly upheld that view and allowed the appeal.
By section 156 of the Penal Code an afiray is committed “ whentwo or more persons, by fighting in a public place disturb thepublic peace The contention for the appellant is founded onillustration (d) to section 184 of the Criminal Procedure Codewhich reads as follows :—
“A and B are accused of being members of opposing factionsin a riot. They should be indicted and tried separately. ”
All the four cases by which Sir Anton Bertram felt himself boundare distinguishable from the present case and from Abeyeicardene v.Fernando et al. {supra) in that there were several accused in each ofthose cases. In the case of Wickremesuriya v. Don Lewis {supra)ten persons were summoned, and Shaw J. in his judgment saysthat “the evidence showed that the accused belonged to tworival factions.” In Keegal v. Mohideen and others {supra) thirteenpersons were charged with affray and the disturbance was betweentwo rival parties. In Velaiden v. Zoysa {supra) Middleton J.states in his judgment that the accused-appellant relied upon thefact “ that he was charged together with persons of an opposing
J (1924) 27 N. L. R. 97.® (1915) 1 C. W. R. 192.
‘ (1910) 14 N. L. R. 140.« (1918) 5 C. W. R. 162.
»(1919) 21 N. L. R. 127.
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parly, with whom he was at enmity, in one proceeding.” InPolice Officer v. Dineshamy et al. (supra) there were six aocuaed.In the case of Abeyewardene v. Fernando et dl. (supra) and the presentcase, two persons were alleged to be fighting each other and thereis no suggestion that there were other persons involved or thatthe two persons present were concerned with any interests otherthan their own.
Seotion 156 of the Penal Code lays down that an affray iscommitted “ when two or more persons, by fighting in a publicplace disturb the public peace.” It is therefore an offence whichone person cannot commit alone. Intention to commit tile offenceis not a necessary element, and the gist of the offence Is not theassault but the effect produced by the joint action of the combatants,namely, the disturbing of the public peace, the interference withthe tranquillity of the public. The two or more persons involvedtherefore commit one and the same offence by reason of the effectof their joint action. They are therefore persons who, in the wordsof section 184 of the Criminal Procedure Code, “ are accused ofjointly committing the same offence,” and under that section“ may be charged and tried together or separately as the Courtthinks fit.”
In my opinion the words in illustration (d) in section 184 of theCriminal Procedure Code preclude the application of the illustrationto a case such as the present. They refer to a more serious typeof offence 'than that with which we are concerned, namely, to anindictable offeuoe whioh is not triable by a Magisterial Court, andI can see no anology in the case we are considering which is a merepersonal quarrel to the olass of case contemplated by the illustration.
In my opinion therefore the two persons were properly triedtogether and the appeal must he dismissed.
Dbxebebg J.—
I agree with the judgments of my Lord the Chief Justice andmy brother Jayewardene.
Jaybwardenb A.J.—
I agree with my Lord the Chief Justioe. When the case wasfirst argued before me, Counsel for the appellant pressed me toconsider the question of the sentence, and I was inclined to thinkthe part of the sentence which ordered the aooused to enter into abond to keep the peace for three months was too severe.
I find that the accused has entered into a bond on Maroh 5,and the period has expired. In the oiroumstanoes'I would dismissthe appeal.(
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