MOSELEY S.PJ.—Nesadurai v. Mohideen.
1940Present: Moseley Sf J.
NESADURAI v. MOHEDEEN.
612—M. M. C. Colombo, 5,605.
Housing and Town Improvement Ordinance (Cap. 199), ss. 5 and IS—Charge oferecting a building and of occupying same without a certificate—Offencescommitted in the course of same transaction—Criminal Procedure Code,s. 180 (1).
Where a person was charged (a) with erecting a building the plan ofwhich had not been approved by the Chairman of the MunicipalCouncil in breach of section 5 of the Housing and Town ImprovementOrdinance, (b) with occuping the same or permitting the same to beoccupied without a certificate of conformity from the MunicipalCommissioner in breach of section 15 of the said Ordinance,—
Held, that the two offences had been committed in the course of thesame transaction within the meaning of section 180 (1) of the CriminalProcedure Code.
^^PPEAL from a conviction by the Municipal Magistrate of Colombo.
J.E. M. Obeyesekere (with him M. M. I. Kariapper), for accused,appellant.
A. Rajapakse, for respondent.
Cur. ctdv. wilt.
December 3, 1940. Moseley S.P.J.—
The appellant was charged with the following offences : —
between October 10 and 25, 1939, erecting a building in breach of
section 5 of Cap. 199 (that is to say, not in accordance withplans, drawings, and specifications approved by the Chairmanof the Municipal Council); and
from and after November 14, 1939, occupying or allowing to be
occupied the said building without first obtaining a certificateof conformity from the Municipal Commissioner in breach ofsection 15 of the said Ordinance.
In the Municipal Court no evidence was called for the defence. Theaccused was convicted on both charges, and has appealed againstconviction and sentence.
The petition of* appeal contains no less than ten grounds but all of thesewere abandoned and learned Counsel for the appellant argued the appealon the following grounds : —
that there is no evidence that the appellant erected the building,
or that he occupied it or allowed it to 1 occupied;
that the second charge is bad in tha1 it alleges the alternative
offences of occupying and allowing to l occupied; and
that there is a misjoinder of charges i that the offences alleged
in the first and. second charges to have been committed by theappellant are not so connected together as to form part of thesame transaction and do not therefore come within the scopeof section 180 (1) of the Criminal Procedure Code (Cap. 16).
In regard to the facts it is not disputed that the appellant was thelessee of the land' on November 14. An Inspector, who visited thepremises on October 10, and saw the 'building going on, described the
MOSELEY S.PJ.—Nesadurai v. Mohideen.
appellant, whom he saw on the premises on that day and to whom hespoke on the subject of the building, as the lessee. On November 14the appellant wrote to the Municipal Engineer expressing his willingnessin certain circumstances to demolish the building. In my view therewas a strong prima facie case that it was the appellant who was erectingthe building. That case was not answered by the appellant.
In the same way, on November 14, the building was found to beoccupied. The inference that the occupation, if it was not by theappellant himself, was with his permission is overwhelming. The state-ment by a prosecution witness that the appellant had leased out thebuildings and that they were occupied was not controverted by him.
No objection was taken at the trial to the second charge' in that italleges alternative offences. The fact of occupation is the gravamenof each allegation and the appellant could not be prejudiced by thealleged duplicity, if indeed in this particular instance such exists.
There remains to be dealt with only the ground alleging misjoinder ofcharges. Counsel for the appellant referred to the case of The King v.Amain1 in which Bertram C.J. reviewed a number of decisions relatingto section 180 (1) of Cap. 16. I would quote from his judgment sm.observation by Benson J. in Cheragudi Vankatadri v. Emperor * whichis as follows :—
“ I do not think it necessary or advisable to attempt to define theexpression ‘ the same transaction ’ which the Legislature has leftundefined. Whether any series of acts is so connected or not mustnecessarily depend on the exact facts of each case, but these are sovaried in character that it is impossible to provide a completely accuratedefinition.”
In Weerakoon v. Mendis * there was no connection whatever betweenthe two offences, other than that the second was committed shortlyafter the first, and there was therefore an obvious misjoinder.
In Lockley v. Emperor * which was brought to my notice by Counselfor the respondent it was said that the “ true test …. is thatthere should be a continuous operation of acts leading to the same endand a common purpose should rim through the acts.”
Again in Amritalal Hazra and others v. Emperor" Mookerjee J. said“ it is not possible to frame a comprehensive formula of universal appli-cation to determine whether two or more acts constitute the sametransaction, but circumstances which must bear on the determinationof the question in an individual case may be easily indicated; they are,proximity of time, unity or proximity of place, continuity of action andcommunity of purpose or design ”. It would be foolish to suppose thatin the present case the appellant erected the building with any purposeother than of occupying it or allowing it to be occupied.
It seems to me therefore that each of the elements referred to above,if indeed all are necessary, is present. In the circumstance I hold thatthe charges were properly joined. The appeal is dismissed. Theconviction and sentence are affirmed.
1 21 N. L. R. 376.* 27 N., L. R. 340. .
* 33 Mad. 602.* (1920) L. V. Indian Cates 345.
s A. I. R. 1916 Cal. p. 196.
NESADURAI v. MOHIDEEN