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QUEEN v SABAPATHI et al.D. G., Jaffna, 1,604.Riot—Penal Code, ». 144—Indictment—Averment of common object of thepersona unlawfully assembled—Averment of use of criminal force—Criminal Procedure Code, 1898, s. 171—Error in stating offence.
Per Browne, A.P.J.—In cases of riot committed in carrying out thecommon object referred to in the first, third, fourth, and fifth clausesof section 138 of the Penal Code, the force should be crimnal force,but in carrying out. the common object referred to in the second andsixth clauses the force uBed need not be criminal force. It is howevernot necessary to inquire whether, at the moment force was used, suchforce was used with criminal intent or not.
The common object of the rioters should be distinctly set out in theindictment. If the accused were in doubt as to the common objectalleged, when called upon to plead they should apply to have theindictment made clear on the point, and then conviction cannot beavoided unless, in terms of section 171 of the Criminal Procedure Code,they have been misled by error or omission in the indictment.
N this case nine men were charged with having been “ membersof an unlawful assembly, and having used force in prosecution
of the common object of preventing a procession from movingalong a road from Batticaloa to Kirimalie.” The accused wereTamils of the Vellala caste and objected (as contrary to custom)to certain other Tamils of the Thachcha (carpenter) caste havinga band of musicians to play at the head of a procession ofcarpenters going to perform a religious ceremony in connectionwith the death of a carpenter which occurred on the 31st January,1899. The ceremony was to have been performed on the thirtiethday after the death, but owing to the opposition of the Vellalasit was put off for more than six months. A complaint was madefro the Government Agent, and fourteen headmen were ordered tokeep peace while the procession with music passed from thedeceased’s house to the temple where the ceremony was totake place. On the way the Vellalas threw stones at the processionad turned it back. No one was hurt. Most of the accused wereidentified as persons who took a leading part in forcing thecarpenters to abandon their journey to the temple with musi-cians playing at the head of the procession.
The District Judge acquitted the fifth and sixth accused,and found the remaining seven accused persons guilty of rioting,in breach of section 144 of the Penal Code, and sentenced them topay each a fine of Bs. 100.
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DornUorat, for appellant.—(1) The indictment is insufficient, asthe common object alleged is not such as would render anassembly unlawful. It was seemingly intended to aver a commonobject of either the fourth or fifth clause specified in section 138of the Penal Code, namely, by means of criminal force or showof criminal force to deprivel any person of the enjoyment of aright of way, or to compel him to do what he is not legally boundto do, or omit to do what he is legally bound to do, but it was notaverred that criminal force was used, or that there was a legalright of procession. (2) Nor has it been proved that there was acommon object at all. The acts of stone throwing were the actsof individuals, and the presence of the accused was not shown tobe due to any common object. (3) Nor has it been proved thatthe forced used was " criminal force ” as defined by section 341of the Penal Code.
Ramanathan, S.-G.—The accused having been sentenced toa fine of Rs. 100, no appeal lies under section 335 of the CriminalProcedure Code, except on a matter of law, and it has been decidedthat no point of law can be argued in appeal which has not beenstated in the petition of appeal (P. C., Batticaloa, 13,801, 28thJuly, 1899). The first argument as to insufficiency of indictment,not being stated in the appeal petition, cannot be pressed now.In any case, the averment in the indictment that accused were“ members of an unlawful assembly ” implies averment of “ cri-minal force.” It is not necessary to aver that there was a legalright of procession, when the right alleged was on the face of itlegal. There is evidence of the common object and use ofcriminal force.
Cur. adv. vult.
22nd January, 1900. Browse. A.P.J., after stating what heunderstood to be the contention for the appellant, said: —
I will at once say that no doubt the force used will always becriminal force in the instances of riot committed in carrying outthe common object of classes first, fourth, and fifth of section 138,of which common object it was a large element, as also that ofclass third, since the force is there used “ in order to the com-“ mitting of any offence;” but that when riot is committed tocarry out the common object of clauses second or sixth, whichmay not be criminal offences per se (seeing they have not beenleft to be included under the “ other offence ” of class third, buthave been separately enumerated), the force used to constitutesuch riot need not be criminal force. But, indeed, in judging ofwhether riot has been constituted by an act of force or violence,
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it is not necessary to inquire whether, at the moment the force isused, there is criminal intent therewith, for in cases where theassembly is unlawful by reason of the use or display of criminalforce being part of the common intent, it will already have beenfound to be existing to constitute the illegality of the assembly,and where it is unlawful without it, there is no need the forceused should ever be of criminal intent.
Now, as to the first contention,—the form of the indictment,the-rule undoubtedly is that enunciated by Withers, J., in 13,461,P. C., Tangalla, on the 17th July last, that it is necessary to statedistinctly in the charge what is alleged to have been the commonobject of the assembly (Mayne, p. 481), but that under section171 of the Criminal Procedure Code the accused must have beenmisled by any error or omission in the charge, or the convictionwill be avoided by such error. In charges of unlawful assemblywhich may be tried summarily by a Police Court, it may be possiblethat accused may be misled by error or omission; but in cases ofriot, which are tried after the taking of the depositions in thepreliminary inquiry, there is far less possibility that the accuseddid not know what common intent was alleged against them.Were they in any doubt thereon when called on to plead to theindictment, or whenever in the course of the trial it might be indoubt which of several possibly chargeable common objects wasthat assigned, it might be expected they would say so; or evenif conviction was as for one not apparently charged, I wouldexpect the variance and the prejudice to be clearly shown. Herethe common object is averred to have been to prevent a processionfrom moving along a road from Batticaloa to Kirimalai, and it issuggested that there was not shown the legal right of the proces-sion so to do. I find, however, no suggestion in the evidence orthe argument that the right did not exist, and when the processionwas under the conduct of local officials, I consider the onuswould be on the defendants to show its illegality in theirdefence.
As to whether the common object has been proved or not, thereis, I consider, some evidence against each and all of the appellantsthat they were members of the crowd of which some, includingseventh, eight, and ninth accused themselves, threw stones.The crowd numbered 100, and I consider its assemblage andacts showed its members had the common unlawful purpose ofpreventing the procession from proceeding and used force tocarry it out.
Even if an appeal on law opens up the facts, I would see noreason to interfere.
QUEEN V SABAPATHI et al.