PREMADASA, Appellant, and COOKE, Respondent

086-NLR-NLR-V-53-PREMADASA-Appellant-and-COOKE-Respondent.pdf


SWAN J.—Premadasa v. Cooke
379
1990Present: Swan J.
PREMADASA, Appellant, and COOKE, RespondentS. C. 377—M. C. Anurad/iapura, 2,531
Autrefois acquit—First charge framed for offence under Penal Code—Second charge,on same facts, for offence under Motor Car Ordinance—Criminal ProcedureCode {Cap. 16) S. 330—Interpretation Ordinance {Cap. 2) S. 9.
The acquittal of an accused person in a prosecution for causing hurt bya rash or negligent act punishable under Sections 328 and 329 of the PenalCode is not a bar to the subsequent trial of the accused, on the same facts, forreckless and negligent driving in contravention of section 88 of the MotorCar Ordinance.
,A.PPEAL from a judgment- of the Magistrate’s Court, Anuradhapura.H. W. Tambiah, with J. G. Thurairatnam, for the accused appellant.Ananda Pereira, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
•September 20, 1950. Swan J.—
The accused in this case was charged under the Motor Car Ordinancewith having driven Motor Bus Z 3321 (a) recklessly, or m a dangerousmanner, in breach of Section 88 (2) and (b) negligently, in breach of Section88 (3). He was convicted and sentenced to pay a fine of Rs. 200 oneach count and.his certificate of competence was suspended for two years.
The accused had been previously charged in respect of the same incidentin case No. 1533 of the same Court under Sections 328 and 329 of thePenal Code with: —
causing grievous hurt to one A. Leelawathie by doing ah act sorash as to endanger human life, to wit, by driving bus Z 3321 (a)recklessly, and (6). at an excessive speed ;
380
SWAN J.—Premada&a v. Cooke
alternatively causing grievous hurt to A. Leelawathie by doing an
act so negligent as to endanger human life, to wit, by drivingbus Z 3321 (a) without due care and precaution, (6) at a speedwhich was excessive in the circumstances ;
causing hurt to one K. G. G. Martin in the same circumstances
as set out in (1);
alternatively causing hurt to K. G. G. Martin in the same
circumstances as set out in (2).
After trial he was acquitted and discharged. Mr. Thambiah submitsthat, in these circumstances, the plea of autrefois acquit which was takenon behalf of the accused at this trial should have succeeded.
Mr. Thambiah’s argument is that under Section 180 the accused couldhave been charged with an offence under the Motor Car Ordinance atthe first trial. Even if that charge had not been specifically framedit was open to the Magistrate at that trial under Section 182 to haveconvicted the accused “ of the offence which he is shown to havecommitted although he was not charged with it In these circumstancesSection 330 (1) would apply.
Section 330 (1) of the Criminal Procedure Code reads as follows: —
A person who has once been tried by a Court of competent juris-diction for an offence and convicted or acquitted of such offence shall,while such conviction or acquittal remains in force, not be liable to betried again for the same offence, nor, o?i the same facts, for any otheroffence for which a different charge from the one made against him mighthave been made under Section 181 or for which he might have been* convicted under Section 182. ” I
I think it would be best to reproduce Sections 181 and 182. Section181 says:—
* “ If a single act or a series of aetsJs of such a nature that it is doubtfulwhich of several offences the facts which can be proved will constitutethe accused may be charged with all or any one or more of such offences,and any number of such charges may be tried at one trial and in atrial before the Supreme Court or a District Court may be includedin one and the same indictment, or he may be charged with havingcommitted one of the said offences without specifying which one. ”
And Section 182 says: —
“ If in the case mentioned in the last preceding section the accusedis charged with an offence and it appears in evidence that he committeda different offence for which he might have been charged under theprovisions of that section he may be convicted of the offence which heis shown to have committed although he was not charged with it. ”
SWAN J.—Premadasa e. Cooke
381
Superficially it may appear that the accused might have, at the previoustrial, been charged with an offence under the Motor Car Ordinance.But when one examines Section 178 of the Criminal Procedure Codeone begins to doubt whether the joinder of charges was possible, forsection 178 provides that “ for every distinct offence of which any personis accused there shall be a separate charge and every such charge shallbe separately tried except in the cases mentioned in sections 179, 180, 181and 184.
In my opinion, an offence contravening certain regulations of the MotorCar Ordinance could not have been tried with an offence of causing hurtby a rash or negligent act punishable under Sections 328 and 329 of thePenal Code. The former offence is not merely different but distinctfrom the latter, and joinder of such charges is clearly contrary to Section178. In these circumstances, the section that governs the matter wouldbe 330 (2) which provides that “ a person acquitted or convicted of anoffence may be afterwards tried for any distinct offence for which aseparate charge might have been made against him on the former trialunder sub-section (1) of section 180.
There is also Section 9 of the Interpretation Ordinance to be considered.It provides that “ where any act or omission constitutes an offence undertwo or more laws, whether either or any of such laws came into forcebefore or after the commencement of this Ordinance, the offender shall,unless the contrary intention appears, be liable to be prosecuted andpunished under either or any of those laws, but shall not be liable to bepunished twice for the same offence.” Here, too, the emphasis is onthe word same ; if the offence is distinct a second charge can be framed.
I regret I am unable to agree with the decision in Maksudan Mistry v.King Emperor *. There Jwala Prasad J. held that an acquittal of anaccused person under Section 338 (= our 328) of the Indian Penal Codewas a bar to the trial of the- accused on the same facts under Section 16of the Motor Car Act. I agree with the learned Judge that the availabilityof fresh evidence can in no way affect a plea of autrefois acquit or convict,but I cannot agree that an offence under the Motor Car Act is not adistinct offence for which a separate charge might have been made.
Dealing with the facts I do not think the learned Magistrate could,on the evidence, have convicted the accused of reckless or dangerousdriving under count (1). The evidence, however, justifies the convictionof the accused on count (2). In view of the fact that the evidence didnot support the charge of reckless or dangerous driving I do not thinkthat the suspension of the accused’s certificate could be justified. In-the result I set aside the conviction and sentence on count (1), as well asthe order suspending the accused’s certificate of competence. Theconviction and sentence on count (2) are affirmed.
Conviction on count (!) set aside-.
Conviction on count (2) affirmed.
(1921) A. I. B. Patna 22.