044-NLR-NLR-V-51-THAMBIAH-et-al-Appellants-and-TENNEKOON-Inspector-of-Police-Respondnet.pdf
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CAJfEJSEBAT^NE J.—Thambiak v. Tennehoon
1940Present: Canekeratne J.
THAMBIAH et al, Appellant*, and TENNEKOON(Inspector of Police), Respondent
S. C. 365-366—M. G. Jaffna, 15,144
Charge— Se wral accused—Common intention—Section 32 of Penal Code—Need notfee referred to in rlwrge.
Where several accused acted with common intention it is not necessary tospecify section 32 of the Penal Code in the chargo framed against them.
Appeals from a judgment of the Magistrate, Jaffna.
M. M. Kumarakulasingham, for 1st accused appellant.
H. W. Tambiah with A. P. Thurairatnam for 2nd accused appellant.A. Mahendrarajah, Crown Counsel, for Attorney-General.
Cur. adv. vult.
May 31, 1949. Canekeratne J.—
At an election held about ten days before, the candidate whom thecomplainant zealously supported was successful; the one favoured by thetwo accused persons was not. So he became the object, as the Magistrate
CAN EKERATNE J.—Thnmtnah v. Tennekoon
187
finds, of their resentment. When the complainant met the two accusednear a junction on February 22, the second accused addressed him thus,“ Are you going to work in the elections ? ” and seized him. Straightawayhe called upon his companion, the first accused, who had a club, to hit him.The first accused then hit him twice on the head with the club—one causeda fracture of the underlying bone. Released from his grasp the injuredman sat down on the ground ; the second accused then caught hold ofhis legs and dragged him a very short distance. There can hardly be anyground on which the conviction of the first accused can be assailed.
From a consideration of all the facts proved and the oiroumst&noessurrounding the case, the Magistrate came to the conclusion that grievoushurt was caused in furtherance of a common intention and convictedthe second appellant; he was a confederate and the act would be a jointone. The case of Mahibvb Shah v. Emperor (A. I. R. 1946, Privy Council,118), quoted by his Counsel, can have no application to the facts of thiscase. Every judgment must be read, as has often been said, as applicableto the particular facts proved, or assumed to be proved, since the genera-lity of the expressions which may be found there are not intended to beexpositions of the whole law, but governed and qualified by the parti-cular frets of the case in which such expressions are to be found1. Theseremarks apply very forcibly to some of the language used in the judgmentreferred to.
It was strenuously contended by counsel that there was no oorrectcharge in the case and in this connection he referred to four decisions.The recital of facts in the two Calcutta cases (50 Calcutta 41 and 58Calcutta 822) shows that there was a reference to Section 34 (of the IndianPenal Code) in the charge in each of those cases, but there is not a wordregarding the necessity of the section in a charge. The Madras case(A. I. R. Madras (1924) 584) falls within the same class. The Judgewho decided the other case states thus :—
“ The omission to frame a charge under Section 34 was vital and the
result is that each man is liable only for his individual acts. ”
There is hardly any convincing reason given for this. In this connectionattention was drawn by him to the following brief statementfrom Gour (5th Edition, 1930, 188) : No person can be convictedunder the section unless he is specially charged with it. As authorityfor this statement is given the case of Cheda Singh, 1924 (P. 0. 183),3a case which Counsel did not produce. There are also three other casesreferred to a little later, namely, the Calcutta and Madras cases whichhave already been discussed; these do not bear out what is stated in thetext. The statement in the text is much wider than the decision inCheda Singh’s case warrants. Three persons R, S, and Cheda Singh werecharged with causing hurt; the first two were convicted but as C. S. wasabsconding proceedings were taken against him later and he was convictedapparently on the ground that he himself caused the injury. In appeal
1 Lord Ualsbury’s remarks.
* In the table oj cases the reference it given as 1924, L. It. 5a, 133. The latter itthe tame at it reported at page 766 of A.I. It. 1924 Allahabad. The delay in deliveringjudgment wot partly due to the teareh for this case.
188
CANEKERATNE J.—ThanMoh v. Tenntkoon
it was arguod that a conviction could be arrived at with the aid of Section34 but the Judge who heard the appeal stated
“ there is no section which will justify me in altering the charge andproceeding now to a conviction on that charge. ”
The view he took appears to be that this would be an entirely new oase,as C. S. would not have known at that trial that the blow was struck byone of his companions and not by him and that it was struck in pursuanoeof a common intention. It is not referred to in any of the other casesquoted by counsel1 or in the other text book, Ratanlal. Ratanlal atpage 72 (16th Edition) discussing Section 34 states thus :—
“ This section does not create any offence and it is not necessary tospecify it in the charge—(6)”. Note 6 ib Wary am Singh (1941) Lahore, 423.Crown Counsel contended that the section need not bo referred to in acharge, as the section of the Criminal Prooedure dealing with a chargemakes mention of an offence, not of an act. He referred2 to WaryamSingh v. Emperor, 1941 (A. I. R. Lahore, 214), and BorelUt Police v.Austin and others (S. C. Minutes of September 10, 1948). In the courseof the judgment in the former case appears the following passage : “ ofthese the last3 is directly in point and in the first authority,4 which was aFull Bench judgment of five Judges, there is a passage in whioh it ispointed out that Section 34 does not oreate any offence and that it isnot necessary to specify it in the charge. The other two judgments 4though not exactly in point support the same principle. As we havesaid before we have not been shown any authority to the effect thatSection 34 has to be mentioned in the charge and wo are ourselves ofopinion that there is no legal necessity to specify this Section. Thesection is really nothing more than explanatory and embodies in theCode the ordinary common sense principle . . . . ” Barendra KumarGhose 4 was tried upon a dharge of murder punishable under Section 302of the Indian Penal Code: apparently there was no reference to Section 34in the charge. He appealed from his conviction to the High Court andafter obtaining a certificate from that Court he appealed from the orderof the Full Bench to the Privy Council. The judgment of the HighCourt was affirmed by the Privy Council (I. L. R. 52 Calcutta, 197).There is nothing in the opinion of Lord Sumner to suggest that he dis-agreed with the view of the High Court on this point—the absence of areference to Section 34 in the charge is not adverted to by him. In thecase of Borella Police v. Austin, Windham J. stated briefly that the sectionneed not be mentioned. In the few cases where the objection was takenin the Assize Court, it has been invariably over-ruled.
The analogy of Section 146 and abetment may suggest the inclusionof Section 32 in a charge but there is great difference between the twooases. Section 146 creates a specific offence and deals with the punish-ment of that offence alone. It provides for the doing of acts by membersof an assembly (having a common object) in pursuance of that objeot.Membership of the assembly at the time of the committing of the offence
1 Some oj these cates were pointed out by a nets eent after the argument was concluded.
In the note furnished after the conclusion of the argument.
» 14 Patna 225.
A. I. R. (1924) Calcutta, 267.
4 55, Calcutta, 822.
59, Calcutta, 1192.
GUXASEKARA J.—Weeraeooria v. Controller of Establishments189
makes a person a sharer in the offence. On the other hand, the elementof participation in an act is the leading feature of Section 32. Abet-ment does not in itself involve the actual commission of the crime abetted.It is a crime apart1. Section 32 only comes into operation when there is asubstantive charge of an offence having been committed. The section isan interpretative clause included in the ohapter of General Explanations(Chapter 2), and should be read into the definitions of substantive offences.Both principals in the first degree and principals in the second degree1 oraccessories are brought within the purview of the section. It does not,as stated previously, creato a new offence. The charge in this case wasunder Seotion 316, " whoever …. voluntarily causes grievoushurt ”. The words “ voluntarily to cause hurt ” are referred to in Section312—“ whoever does any act. . . to ascertain the nature and effectof an act one has to resort to the Sections in Chapter 2, e.g., Sections 31,32. (e.g., Section 170 of the Criminal Procedure Code). There is alsonothing in Section 167, or Section 184 or in any other Section in Chapter 17of the Criminal Procedure Code which tends to show that a referenceto Section 32 is necessary. The view taken by some of the Indiandecisions, and the view presently held in Ceylon seems to be a common-sense view and nothing that has been urged has shown that it is wrong.The objection urged by Counsel fails. The appeals are dismissed.
Appeals dismissed.
• I. L. R. $2 Calcutta (112)