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193°Present: Juyewardene A.J.
SUB-INSPECTOR OP POLICE, CH1LAW v. EKEBINU.
332—P. C. Chilaw, 30,043.
■ Charge—Several offences committed in course of same transaction—Charge pending for major offence—Conviction for minor offence—Regularity.
Where in the course of one transaction an accused person hascommitted several acts, directed towards the same end, whichwhen combined amount to a more serious offence, and he ischarged with that offence, he should not he tried separately forany of the subsidiary acts.
^ PPEAL from a conviction bythe Police Magistrate of Chilaw.
Ranawaka, for accused, appellant.
CroMette Thambiah, (J.C., for respondent.
. June 18, 1930. Jayewardene A.J.—
The accused was charged with having in his possession a jemmv,an instrument for housebreaking, with intent to commit an offenceunder section 449 of the Penal Code, and convicted and sentencedto six' months’ rigorous imprisonment. The evidence was that oninformation that a gang of robbers was going to break into thehouse of one Abraham, the police with two-sub-inspectors watchedthe house and at about 1 a.m. on February 27 arrested' the accusedwith four others in the verandah as they were about to break intothe house. Sub-Inspector Sivasampu arrested this accused who hadthe jemmy. The others were similarly armed, and one had a sword.The accused is also charged with the others with attempting tocommit housebreaking by night, under sections 443 and 490 of
1 (1027) 5 T. L. R. 70.
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the Penal Code, in P. C. Chilaw, No, 30,039. For the accused it wasargued that the possession of the implement of housebreaking wasonly an ingredient of the major offence of attempting to commithousebreaking, and that it was illegal to convict the accused of theminor offence and punish him for it while the major offence was stilluntried. Under section 180 of the Criminal Procedure Code, if inone series of acts so connected .together as to form the same trans-action moire offences than one are committed by the same person,he may be charged with and tried at one trial for every such offence,or if several acts of which some constitute, one offence but whencombined constitute a different offence, he may be charged with andtried at one trial for any offence constituted by any one or more ofsuch acts. It is not illegal to try the accused for different offencesseparately, although the prosecution is entitled to ask the Court togo into the whole matter at a single trial. The provisions of thissection are not imperative but enabling (Sohoni; Code of CriminalProcedure, p. 576, 12th ed.). Where persons were charged with riotingand also with causing hurt at the time of the riot, it was held that,although they may have been tried as for one offence, it was notillegal to try them for both offences separately (Ameruddin v.Sarkar 1).
Inspectorof Police,Chilawv. Erebinu
However, it has been pointed out by the Madras High Court thatthis course, though not illegal, was undesirable (Mad. H. C. Pro.19th Aug., 1886, Sohini, p. 574).. Where, as ini this cas6, the sameevidence could be called in support of both charges, one trial wouldsave both time and labour. Where, in the course of one and thesame transaction, an accused appears to have done several acts,directed to one end, but when combined together amount to a moreserious offence, although for purposes of trial it may not be illegalto charge the accused with not only the principal but also thesubsidiary offences, yet in the interests of simplicity and convenienceit is best to concentrate the conviction and. sentence on the gravestoffence.
In R. v. Ajudhia2 Straight J. observed that convictioncould only be recorded on the count for the most serious offenceproved, which would dispose of or include all those subordinate andnegative the others inferior to it and for formal purposes he orderedthat judgment of acquittal be entered upon .the minor charge.This decision was in 1882, when concurrent sentences could not beimposed. It is thought that the passing of concurrent sentenceswould obviate all difficulties. In the present case the sentencescannot be concurrent because there will be two. trials. The Cal-cutta High Court has expressly prohibited the splitting up of oneaggravated offence into separate minor offences (R. v. Kairi 3).
1 (1882) 8 Cal. 481.1 (1882) 2 AU. 644.
a (1866) 6 N. B. 38 .Ratanlal 69 (4th ed.).
' Chilawv. Erebinu
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The charge against the accused of attempting to commit house-breaking has not yet been tried. The evidence will be the same—that he was caught on the verandah with the jemmy, or very muchto the same effect. The principle underlying section 67 of thePenal Code is that where the intention was to commit an offence,the commission of which involves the perpetration of acts by them-selves punishable, the offender should not be punished for themseparately, as his object was to commit one crime, not many. Therule has been followed in many cases under the English law. Itis the Legislative recognition of the maxim of the Boman law—‘ Nemo debet bis pwniri pro uno delicto ’ (2 Gourt p. 383, 4th ed.).The accused has still to be tried and may yet be punished for themajor offence. I think two separate trials on two such counts arecontrary to the spirit, of our criminal law and undesirable. I wouldfor formal purposes quash the conviction. The Magistrate may,if he thinks fit, add the present charge to the charge of attemptingto commit housebreaking in. P. C. Chilaw, 30,039, but thesentence, in the event of a conviction, will not be cumulative.
SUB-INSPECTOR OF POLICE, CHILAW v. EREBINU