082-NLR-NLR-V-54-K.-VAITILINGAM-et-al-Appellants-and-THE-QUEEN-Respondent.pdf
Vaitilingam, v. The Queen
345
1953Present: Gratiaen J. and Gunasekara J.
K.VAITILINGAM et al., Appellants, and THE QUEEN, RespondentS. C. 63—70—D. C. Point Pedro {Criminal), 23
Indictment—Charges contained therein—Should not he different from those that werethe subject of the proceedings in the Magistrate's Court—Criminal ProcedureCode, s. 165F.
An Indictment can charge the accused only with offences alleged in thecharges upon which he has been committed for trial or offences of which hecan be lawfully convicted upon a trial of those charges.
A.PPEAL from a judgment of the District Court, Point Pedro.
H. W. TamJbiah, with Thanabalasingham, for the 1st, 3rd and 4th.accused appellants.
M. M. Kumarakulasingham, for the 5th and 6th. accused appellants.
K.C. Nadarajah, for the 7th, 8th and 10th accused appellants.
Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
1 De Zilva v. Anwardt (1 S. C. C. 28).s Usoofv. Bawa (2 Leader Law Reports 49).
346
GTnSTASEKAJRA J.—VaitiUngam v. The Queen
March 18, 1953. GtUEXSEkaka J.—
The eight appellants were, each of them, convicted on six countsof an indictment on which they were tried before the [District Courtof Point Pedro. It is contended for them that their convictions arebad for the reason that the offences charged in these six counts, and ofwhich they have been convicted, are not offences that were alleged inthe charges upon which they Were committed for trial or those in respectof which the committing magistrate had held an inquiry, and that theyare not offences of which they could have been lawfully convicted uponthe trial of any of those charges.
The counts in question allege an offence of unlawful assembly punish-able under section 140 of the Penal Code and five other offences committedin prosecution of “ the common objects ” of the assembly ; these fiveoffences being rioting punishable under section 144, criminal intimidationpunishable Tinder section 486 read with section 146, two offences ofmischief by fire punishable under section 419 read with section 146,voluntarily causing hurt punishable under section 314 read with section146.
The count of unlawful assembly alleges that the accused had“ one or more of the following common objects :
(а)to commit criminal intimidation by threatening to cause
injury to the person and property of Kethar Kethapperand other members of the Palla community,
(б)to commit mischief by setting on fire the houses of Kethar
Kethapper and other members of the Palla community,(c) to cause hurt to members of the Palla community
Thus an essential ingredient of each of the offences charged in the sixcounts is that the accused contemplated the commission of certainoffences against members of the Palla community as such. (It couldonly be upon this view that it was contended by the prosecuting counselat the trial, in reply to an objection to the admission of medical evidenceabout injuries found on a man who according to the Crown case hadbeen wounded in the alleged riot, that although the indictment containedno charge of an offence committed against this man the evidence wasadmissible for the reason that he was a member of the Palla community.)No magisterial inquiry was held, and there was no commitment of theaccused for trial, in respect of any charge alleging that they had acommon object of committing any offence against members of the Pallacommunity. The charges in respect of which the magistrate held aninquiry and committed the accused for trial did allege offences of un-lawful assembly and rioting, but they alleged a different common object,namely, that of committing certain offences against twelve individuals,one of whom was Kethar Kethapper, and there was no reference tothe Palla community in any of the charges that were framed in theMagistrate’s Court. According to these charges too, the offences whichformed the common object of the assembly were offences of criminalintimidation, mischief by fire, and hurt, but they are not for that reasonthe same as .the offences alleged in the indictment to have been the
GUNASEKAEA T.—Vaitilingam v. The Queen
347
common objects of the assembly. Thus there has been no magisterialinquiry, or commitment for trial, in respect of the charges of unlawfulassembly and rioting upon which the appellants were tried and convicted.Furthermore, there was no inquiry or commitment in respect of a chargeof any other offence at all an ingredient of which is membership of anunlawful assembly : charges laid under section 146 of the Penal Codeappear for the first time in the indictment and do not appear in theproceedings before the magistrate. In other respects too the chargesset out in the indictment are essentially different from those that werethe subject of the proceedings in the Magistrate’s Court. The offence ofcriminal intimidation charged in the indictment is alleged to have beencommitted against “ Kethar Kethapper and other members of the Pallacommunity ” ; but there has been no magisterial inquiry or commitmentin respect of any charges of intimidation framed against the appellants,except charges against the 3rd and 4th accused alleging criminal intimi-dation of one Sandanam and against the 4th and 6th accused allegingcriminal intimidation of one Eliyavan. The two counts of mischiefupon which the appellants have been convicted allege the destructionof the houses of two persons named Swaminather and Paruwathy, butnone of the appellants were charged with either of these offences beforethe magistrate : in the Magistrate’s Court the 1st, 6th, 7th, and 10thaccused were charged with other offences of mischief punishable undersection 419 of the Penal Code, and the 1st and 8th with abetment ofsimilar offences, and against the 3rd, 4th and 5th accused there wereno charges at all of mischief or abetment of mischief. The count ofvoluntarily causing hurt alleges an offence committed against oneParuwathy, but in the Magistrate’s Court there was no charge in respectof that offence against any of the appellants except the 3rd accused,and, as I have already indicated, the charge against him was not laidunder section 146. I agree with the contention of the learned counselfor the appellants that the offences alleged in the six counts in questionare not offences with which the appellants were charged in the Magistrate’sCourt. Nor are they offences of which they could have been lawfullyconvicted upon a trial of the charges that were inquired into by themagistrate and upon which they were committed for trial.
The question then arises whether it was not open to the Attorney-General, nevertheless, to include in the indictment the six counts uponwhich the appellants were convicted.
The Criminal Procedure Code provides that a commitment must bepreceded by an inquiry, and by section 165e, requires the committingmagistrate “ to forward to the Attorney-General a copy of the record ofthe inquiry certified under his hand ”. It then provides, by section165f, for the presentment of an indictment “ if after the receipt by himof the certified copy of the record of an inquiry, the Attorney-General isof opinion that the case is one which should be tried before the SupremeCourt or a District Court ”. The inquiry that precedes the commitmentmay in a given case consist in a proceeding under chapter XVI or inone under chapter XVIII. In either case, the magistrate must at thecommencement of the proceeding read to the accused the charge in
348
GUNASEKABA J. — V-aitilingam v. The Queen,
respect of which it is being held (sections 156, 187 (3) ), and before theaccused can be committed for trial he must be given an opportunity-of cross-examining the witnesses called on behalf of the- prosecution•(sections 157 (2), 189 (2) ) and of adducing evidence for the defence(sections 161, 189 (1) ), and he must also be given an opportunity ofmaking a statement in answer fro the charge (sections 160 (1), 188 (2) ).It is obvious that this procedure is designed to secure for the accused,among other advantages, an opportunity of showing that the evidenceagainst him does not warrant his commitment for trial before ahigher court for the offence alleged in the charge that is the subject ofthe inquiry or any other offence of which he may be lawfully convictedupon a trial of that charge. Thus section 161 (3) requires the magistrate,in an inquiry under chapter XVI, to take the evidence of any witnesscalled for the defence who knows anything tending to prove “ theinnocence of the accused ”, which can only mean innocence of the offencecharged in those proceedings or an offence of which he may be lawfullyconvicted upon a trial of that charge. In the case of a preliminaryinquiry under chapter XVI it is provided by section 162 (1) that “ ifthe Magistrate considers that the evidence against the accused is notsufficient to put him on his trial, the Magistrate shall forthwith order himto be discharged as to the particular charge under inquiry ”, and bysection 163 (1) that “ if the Magistrate considers the evidence sufficientto put the accused on his trial, the Magistrate shall commit him for trial ”,In the case of a proceeding under chapter XVIII it is provided, bysection 192 (1), that “ if the Magistrate after taking the evidence adducedfor the prosecution and the defence is of opinion that the accused isguilty of an offence which cannot be adequately punished by a Magistrate’sCourt, he shall not convict the accused but shall commit the accused fortrial to the Supreme Court or to the District Court, as to him may seemfit, and shall follow the procedure prescribed in Chapter XVI in regardto the steps to be taken after the commitment of an accused for trialIn each case the context implies that the accused can be committedfor trial only upon a charge that he has had an opportunity of meetingat the inquiry or trial before the magistrate. No purpose would beserved by this restriction of the scope of the commitment, or by theaccused being given a right to defend himself against a formal chargebefore he can be committed for trial, if the scope of the indictment uponwhich he is to be tried is not determined by the commitment. TheCode also requires that at "a trial on indictment, whether beforethe Supreme Court (section 233) or a District Court (section 209),“ all statements of the accused recorded in the course of the inquiry inthe Magistrate’s Court shall be put in and read in evidence before theclose of the case for the prosecution ”, and the object of this provisionwould be defeated if the accused could be tried on a charge in answerto which he was given no opportunity of making a statement in theMagistrate’s Court. It appears also to be implied in the provisionsrelating respectively to the summoning and the binding over ofwitnesses for the defence to give evidence at the trial, which are containedin sections 165 and 165a, that the indictment can allege only an offenceof which the accused can be convicted upon the trial of a charge in
GTTNASEKARA J.—Vaitilingam v. The Queen
349
respect of which, he has been committed for trial. Section 165 (1)provides that “ the Magistrate shall at the time of committing theaccused for trial require the accused to state orally there and then thenames of persons (if any) whom he wishes to be required to give evidenceat his trial ” ; and section 165 (2) requires the magistrate to prepare alist of such of the witnesses named by the accused as have not alreadygiven evidence before him and to cause them to be summoned to appearbefore the court of trial, “ provided however that the Magistrate mayexclude from such list the name of any witness if he is of opinion thatthere are no reasonable grounds for believing that the evidence of suchwitness is material Under section 165a (1) the magistrate must,when he commits the accused for trial, require “ every material witnessfor the prosecution or defence ” who has appeared before him and givenevidence, and who has not already been bound over, to execute a bondfor his appearance to give evidence at the trial. It can only be inreference to the charges upon which the accused is committed for trialthat at that stage the accused can say whom he may need as witnessesat the trial and the magistrate can decide whether they are materialwitnesses.
Section 165f of the Code is the only source of the Attorney- General'spower to present an indictment. It seems to me that when theprovisions of this section are read in the light of those relating to theproceedings that must be taken before the copy of the record isforwarded to the Attorney-General, it is clear that the indictment cancharge the accused only with offences alleged in the charges upon whichhe has been committed for trial or offences of which he can be convictedupon a trial of those charges.
In support of his argument for a contrary view the learned CrownCounsel cited the case of JR. v. Vallayan Sittambaram 1, where it washeld by Bertram C.J. and Ennis J. (Shaw J. dissentiente) that it wasopen to the Attorney-General to include in the indictment a charge inTespect of any offence disclosed at the magisterial inquiry underChapter XVI of the Criminal Procedure Code though particulars of thatoffence had not been explained to the accused at the commencementof the inquiry. Since the decision of that case in 1918, however, Ordinance.No. 13 of 1938 has made sweeping amendments in the Code, particularlyin Chapter XVI, which have taken away the basis of that decision.Under the law as it stood before the amendment it was in the indictmentthat a charge was for the first time framed against the accused, andit was after the indictment had been settled by the Attorney-Generaland upon a charge or charges so framed that the accused was committedfor trial. It was in respect of an accusation merely, and not as now aformal charge which could be the basis of a trial, that the preliminaryinquiry was held ; and what the magistrate was required to do at thebeginning of the inquiry was to state to the accused person the natureof the offence of which he was accused, giving such particulars as werenecessary to explain it, while now he is required to read over to hfmthe charge in respect of which the inquiry is being held. The commitment
(1918) 20 N. L. R. 257.
350
N AG ALIN GAM J.—Kodakan Pillai v. 3Pudana.ya.fce
of the accused for trial was a ministerial act done by the magistratein compliance •with a direction given by the Attorney-General if hedecided at the conclusion of the Magistrate’s inquiry into the accusationthat the accused should be committed for trial upon a charge of anyoffence that the inquiry disclosed. The law was amended in otherimportant respects, too, but the amendments to which I have referredare sufficient to show that the present procedure is fundamentallydifferent from the old. Under the old procedure there could not arisea situation in which the charges contained in the indictment weredifferent from those upon which the accused was committed for trial.The decision in Vallayan Sittcvnibaram’s Case furnishes no support forthe view advanced on behalf of the Crown.
The convictions -under appeal must be quashed and the sentencespassed on the appellants must be set aside.
Gbatiaen J.—I agree.
Convictions quashed.