071-NLR-NLR-V-43-JONKLAAS-v.-SOMADASA-et-al.pdf
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WIJEYEWARDENE J.—Jonklaas v. Somadasa.
1942
Present : Wijeyewardene J.JONKLAAS v. SOMADASA et al.
570-2—M. C. Colombo, 20,832.
Joint trial—Offences committed in the course of same transaction—Criminal
Procedure Code, s. 185—Illegality.
Community of purpose and continuity of action are essential elementsnecessary to link together different acts so as to form one and the sametransaction within the meaning of section 184 of the Criminal ProcedureCode.
Disobedience to an express provision as to a mode of trial is anillegality which vitiates the connection.
A PPEAL from a conviction by the Magistrate of Colombo.
E. D. Cosme (with him J. de V. Fernando Pulle), for appellant..
H. W. R. Weerasooriya, C.C., for respondent.
Cur. adv. vult.
January 29, 1942. Wijeyewardene J.—
Six accused were charged in the Magistrate’s Court—
(a) with having committed mischief at Grandpass road on April 6,1941, by causing damage to the value of Rs. 50 to car No. Z 2367and to other motor vehicles, property in the possession of theHon. Mr. D. S. Senanayake and others, with intent to causewrongful loss or damage to the said Hon. Mr. Senanayake andothers and thereby committed an offence punishable undersection 410 of the Penal Code ;
•(b) with having, at the same time and place, as aforesaid, attemptedto commit mischief by aiming stones at car No. Z 2367 andother motor vehicles belonging to Hon. Mr. D. S. Senanayakeand others and thereby committed an offence punishable under 'sections 509 and 490 of the Penal Code.
The accused pleaded not guilty. No evidence was called for thedefence but the proctors appearing for the defence stated at the close ofthe case for the prosecution that all the accused should not have beentried together. The Magistrate acquitted the 1st and 6th accusedbut convicted the remaining accused—the appellants on the presentappeal—on count (a) and sentenced each of them to a term of 2 months’rigorous imprisonment.
At the hearing of the appeal the Counsel for the appellants raised anumber of points but it is sufficient for the purposes of this appeal toconsider his objection regarding the joint trial of the accused.
The evidence led by the prosecution was to the effect that on April 6,1941, a meeting was held at Grandpass in support of Dr. R. Saravana-muttu, a candidate for the Colombo North seat, at a State Council Election,some time later. Itc was alleged that he belonged to the Congress Partywhile his opponent was a candidate put forward by the Labour Party.The Hon. Mr. D. S. Senanayake attended that meeting to support the•candidature of Dr. Saravanamuttu. It was about the time that
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Mr. Senanayake and others were going away from ithe meeting that the-accused are alleged to have committed the acts referred to in the charges.Some distance away from the place were the meeting was held, the1st accused was arrested about 7 p.m. as he aimed a stone at a car passingalong the road. The prosecution is unable to state that the stone hitthe car and cannot say whose car it was. -There is no evidence to showthat any one who attended the meeting or espoused the cause of Dr. Sara-vanamuttu was interested in that car. About quarter of an hour later,as Mr. Senanayake was driving along the Grandpass road, the appellantsand some others threw stones and some of them hit Mr.' Senanayake’scar. Sometime later, as Dr. Saravanamuttu was walking down theGrandpass road, followed by his car, a constable arrested the 6th accusedas he saw him “ pelting a stone towards Dr. Sarayanamuttl’s car ”.Referring to this incident, Dr. Saravanamuttu stated : —
“ I do not think the affair was put up by the opposing party. Ithink these rowdies had been put up by some person. It was personalopposition. The men used for the purpose naturally belonged to the
•opposite partyHe (6th accused) aimed the stone at the
passers-by. I can’t say at what else he vaimed the stone. He mayprobably have tried to get me with the stone. I can’t say if he wantedto get the car …. My impression at the time was that the 6thaccused threw the stone to injure one of my party.”
Major Saravanamuttu, a supporter of Dr. Saravanamuttu, was notprepared to say that this stone-throwing incident had anything Ho dowith the conflict between the Labour Party and the Congress Partyover the particular election. He stated further that the stone thrownby the 6th accused hit a man who was by him.
Now the principle that each accused should Have been tried separatelycould have been disregarded in the present case only if the appellantsand the other two persons were “ accused of jointly committing the sameoffence or of different offences committed in the same transaction”.(Vide section 184 of the Criminal Procedure Code). These six personsdid not certainly commit the same offence nor is there even an allegationin the charge that they acted jointly. Could it be said that these sixpersons were accused of different offences committed in the same transac-tion. This involves a consideration of.the meaning of the word “trans-action”, which has not been defined in the Criminal Procedure Code.In discussing the meaning of this word in the corresponding section ofthe Indian Code of Criminal Procedure the High Courts of India haveheld that the substantial test for determining whether several offencesare committed in the same transaction is to ascertain whether they areso related to one another in point of purpose or as cause and effect or asprincipal and subsidiary acts as to constitute one continuous action.While the fact that offences are committed at different times and placesneed not necessarily show that the offences are not committed in thesame transaction, yet these are matters which cannot be ignored altogether.The evidence in this case with regard to the stone-throwing by the 1staccused and 6th accused renders it impossible to regard their offencesand the offences of the appellants as committed in the same transaction43/22
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Marikar v. Coder.
and it cannot be said that we have here a community of purpose and acontinuity of action which are regarded as essential elements necessaryto link together different acts so as to form one and the same transaction.There is, therefore, in this case, a clear misjoinder of accused. Such amisjoinder cannot be regarded as a mere irregularity which can be curedeither under section 425 of the Criminal Procedure Code or section 36of the Courts Ordinance. In the case of Subbramania Iyer v. The KingEmperor' the Privy Council stated that the disobedience to an expressprovision as to a mode of trial should not be considered as a mere irregu-larity but as an illegality. In delivering the judgment of the PrivyCouncil the Lord Chancellor said :
“ The remedying of mere irregularities is familiar in most systemsof jurisprudence but it Would be an extraordinary extension of sucha branch of administering the Criminal Law to say that when the codepositively enacts that such a trial as that which has taken place hereshall not be permitted, that this contravention of the Code comeswithin the description of error, omission or irregularity.”
The Supreme Court has adopted and followed in several cases theprinciple laid down in the Privy Council decision (vide The King v. Mehdis2,Weerakoon v. Mendis3). Following the decisions, I quash the convictionsand the proceedings ab initio. If the accused are charged again, it wouldbe-fair that such trial should take place before another Magistrate.
Quashed.