( 511 )
Present: Jayewardene A.J.
200—P. C. AvissaweUa, 11,019,Vehicles Ordinance—Bash and negligent driving—General charge
Irregularity—Ordinance No. 4 of 1916, s, 22,
The accused} the driver of a motor omnibus,was charged generallywith all the offences mentioned in rule 32 of the by-laws framedunder section-22 of the Vehicles Ordinance. The evidence wasdirected to the point that a horse belonging to the complainantwas injured by its striking against the mudguard of the omnibus.
The Magistrate, while holding that the injury was not caused inthe manner sought to be established by the prosecution, convictedthe accused of driving his ’bus on the public road in a manner asto cause danger to human life, or injury to any person, or animal,in breach of the aforesaid rule.
Held, that the conviction was bad.
“ In cases under section 48 or by-law 32 the prosecution should,after a consideration of the evidence available, decide which ofthe offences under the section or the by-law the accused appearsto have committed and frame only such charges as appear to beappropriate to the facts which it can prove.”
PPEAL from a conviction by the Police Magistrate ofAvissawella. The facts appear from the judgment.
H. V. Perera (with C. J, C. Jansz), for accused, appellant.Kewneman, for complainant, respondent.
Jayewardene A.J.—
In this casetheaccused, who is the driver of a motor omnibus, hasbeen convicted of driving “his ’bus on the public road rashly andnegligently in a manner as to cause danger to human life, or injuryto any person, or animal in breach of rule 32 of by-laws framedunder section 22 of Ordinance No. 4 of 1916,” an offence punishableunder by-law 34 framed under the same section, and sentenced topay a fine of Rs. 30.
The accused complains in his petition of appeal, and I thinkthere is good ground for his complaint, that “ no proper charge wasframed against the accused and he has thereby been greatly pre-judiced in his defence ; the charge in the plaint being both vagueand meaningless.” It appears that the accused was driving his’bus along the Alutgama-Karawanella road, along which a horse-keeper was taking a horse on the right hand side -of the road, amotor car had just then passed the horse, which had become restiveAs the accused’s ’bus approached the horse, the horsekeeper sayshe signalled to the accused to stop by putting his right hand up
Jayewab-BENE A.J.
Sub-Inspec-tor of Police,• Dehiowita,v. K. M.Perera
( 512 )
and cried out several times, but the accused, without heeding thesignal, drove on, and the near mudguard of the ’bus struck one ofthe hind legs of the horse, causing an injury, and the horse had to bedestroyed. The learned Magistrate, however, finds that the horsewas injured, not by coming in contact with the ’bus, but by strikingits leg against a railing on the side of the road. On these facts thePolice reported to Court that the accused did on the day in question“ drive his motor ’bus No. A1117 on the public road recklessly andnegligently at a speed or in a manner which is likely to endangerhuman life, or cause hurt or injury to any person, or animal, orwhich would be otherwise than reasonable and proper, havingregard to all circumstances of the case, including the nature and useof the road and to the amount of traffic which was actually on itat the time, or which may reasonably be expected to be on it, inbreach of rule 32 of by-laws framed under section 22 of OrdinanceNo. 4 of 1916, and thereby committed an offence punishable undersection 34 of by-laws framed under section 22 of Ordinance No. 4 of1916.” The accused appeared on Police bail, and the charges wereread out from the Police report. The report contains all the offencesabout six in number, included in by-law, 32, which reproduces theoffences under section 48 of the Vehicles Ordinance of 1916. 1 hadhad occasion to analyse that section and to point out the variousoffences which it contains in my judgment in Policy Sergeant,Lindula, v. Stewart,* and I also pointed out that unless there is aseparate charge for every distinct offence included in that section,the charge would be bad for “ duplicity,” an irregularity which isnot necessarily fatal to a conviction in view of section 425 of theCriminal Procedure Code, unless the accused has been prejudiced.The same remarks apply to charges for offences under by-law 32.In that case, however, the irregularity was not so gross as in thepresent case, where all the six offences have been included in oneand the same charge. I am unable to say that in this case theaccused has not been prejudiced by the failure of the prosecutionto observe the requirements of section 178 of the Criminal ProcedureCode, which regulates the framing of charges. In cases undersection 48 or by-law 32, the prosecution should, after a considerationof the evidence available, decide which of the offences under the section,or the by-law, the accused appears to have committed, and frame onlysuch charges as appear to be appropriate to the facts which it can prove.A further charge can always be added, if necessary.
In this case, I would hold that the irregularity is not cured bysection 425, as, in my opinion, the accused must have beenprejudiced by the way in which the charge has been framed.
The appeal is allowed, and the conviction set aside.
1 1(1923)25 N.&. B. 16$.