137-NLR-NLR-V-41-THE-KING-v.-EMANIS.pdf
The King v. Emanis.
529
[Court of Criminal Appeal]
1940Present: Howard C.J. (President), Hearne and
'Keuneman JJ.
THE KING v. EMANIS.
64—M. C. Colombo, 33,253.
Indictment—Three counts—Withdrawal of two counts—Power of Attorney-General to frame fresh charge on the count withdrawn—Criminal Pro-cedure Code, s. 172 (I).
The words “alter an indictment” in sub-section (1) of section 172 ofthe Criminal Procedure Code include the withdrawal of a count in an,indictment.
Where a charge is withdrawn in pursuance of the Court exercising itspower under the section, the Attorney-General has no right to frame afresh indictment in respect of the charge. If it is desired to place theaccused person on his trial in respect of a charge so withdrawn, magis-terial proceedings must be commenced de novo.
rpHE accused-appellant was indicted on three counts before Cannon J.J. on June 5, 1940. Before the indictment was read Crown Counselwithdrew with the consent of the presiding Judge count (3) of theindictment under section 217 of the Criminal Procedure Code. He nextmoved to amend the indictment by the deletion of count (1) with thereservation of the right to proceed against the appellant on count (1) ifthe charge on count (2) failed or if the Attorney-General so desired.Counsel for the appellant objected to the Crown reserving any right toframe another indictment if the present one failed. The presiding Judgeallowed the motion of the Crown Counsel and proceeded with count (2).The appellant was convicted and sentenced to twelve years’ rigorousimprisonment. On August 19, 1940, an indictment containing count (1)of the original indictment was presented by the Attorney-General againstthe appellant. Counsel for the appellant moved to quash the indictmenton the ground that the Crown had no legal fight to present the indictmentat this stage. The presiding Judge overruled the objection and proceededto trial. The appellant was convicted of culpable homicide not amountingto murded and was sentenced to a term of five years’ rigorous imprison-ment. He appealed from the conviction.
C. S. Barr-Kumarakulasingham (with him M. M. Kumarakulasingham),for the accused, appellant.—The word “alter” in section 172 (.1) of theCriminal Procedure Code does not mean “ withdrawal ”, An extendedmeaning is given to that word by sub-section (3) of that section. It isclear from this that the Legislature did not want to extend the meaningfurther so as to include a withdrawal of a charge. The correspondingIndian section is 227. It is different from our section in that there arethe words “ alter or add ” instead of alter, and there is no sub-section (3).Hence the interpretation given in India will not apply. Withdrawalunder section 217 would entail fresh non-summary proceedings before theAttorney-General could present an indictment on the charge so with-drawn. In the present case the Court had deleted a charge. TheAttorney-General cannot take any steps whatsoever on. the deleted chargenot even the initiation of non-summary proceedings.
530
The King v. Emanis.
The Attorney-General’s powers are to be found in the CriminalProcedure Code. He has no inherent powers. He has in this caseexercised whatever power is given to him by section 165f “ to present anindictment ” when he presented the first indictment. Having thusexhausted his powers it is not open to him now to present this indictment.
It cannot be argued that what Cannon J. really did in this case was toorder separate trials. Separation of trials is provided for under section 5of the Indictments Act. Under that section the Court before orderinga separation of trials should be satisfied that the accused would beprejudiced by a joint trial. In the present case the Court was neithercalled upon to avoid prejudice to the accused nor did it in fact considerthat question at all.
The joinder of charges is provided for in sections 179 and 180. InEngland the corresponding provisions are in the Indictment Act, 1915.The provisions are slightly different. R. v. Tayler1 and R. v. Davies1do not prohibit the joinder of charges. They lay down the principle thatwhere the evidence is separable it is desirable to have separate trials.Indictment is explained in Latham v. The Queen *.
An accused person giving evidence on his own behalf is not a “ witness ”under section 122 and therefore he cannot be cross-examined regardingany statement he may have made under section 122, Criminal ProcedureCode, in the course of investigation. See King v. Kiriwasthu * and Coorayv. Perera°.
On the evidence the statement of the accused amounts to a confessionas in King v. Kalu Banda". It is therefore barred by section 25 of theCode. The . word confession is defined in section 17 of the EvidenceOrdinance.
J. W. R. Ilangakoon, K.C., Attorney-General (with him Nihal Gunase-kera, C.C.), for the Crown—Section 172 (3) of the Criminal ProcedureCode is not exhaustive of the meaning of “ alter The deletion of acount from an indictment is an alteration. A fresh indictment can bepresented in respect of the count so deleted. The accused has not pleadedto the deleted chargp.
An accused charged with a non-summary offence can be tried after acommittal or by criminal information under section 385 of the CriminalProcedure Code. A non-summary inquiry has been held in this case andthe accused committed for trial. It is open to the Attorney-General undersection 165f of the Criminal Procedure Code to present more than oneindictment against an accused on the same committal. When aMagistrate commits an accused on several charges the committals areseveral and distinct. See R. v. Phillips and Quayle His powers are notexhausted by presenting one indictment. There is no time limit within mwhich indictments may be presented. If the Attorney-General considersbefore the trial that it would be more appropriate to indict an accused ina form different to that in which an indictment has already been presenteda fresh indictment may be presented.
[Howard C.J.—Have you any reserve powers other than those in theCode ?]
1 18 Cr. A.R.2S._‘ {1939) 14 C. L. W. 25.
(1931) 3 All. B. R. 531.I-6 (1937) 8 C. E. W. 65.
5 B. dk S. 635.'- . _• 15 N. L. R. 422.
■ 7 26'Cr. A. R. 208.
HOWARD CJ.—The King v. Emanis.
531
No. It cannot .Jbe said that the Attorney-General has no power topresent two indictments in respect of the same charge but differentlyworded and to take up one of them at the trial.
[Ketjneman J.—Should not there be a fresh committal ?]
No, in view of the fact that the accused has not been discharged.
There is nothing to prevent a Police officer from giving oral evidence ofstatements made to him to contradict or corroborate a witness.
[Heakne J.—Can he use it to contradict the accused ?]
He can so long as it is not a confession. Section 122 of the CriminalProcedure Code prohibits production of the recorded statement. SeeKing v. Attygalle'. The effect of King v. Kalu Banda1 has been whittleddown by King v. Cooray a.
C. S. Barr Kumarakulasingham, in reply.—Rex v. Fernando * held thatthe statement of accused could not be used to contradict him.
There is no power under section 165f of the Criminal Procedure Codeto present more than one indictment. The word “ an ” in that sectionsuggests this view.
Under section 172 the Court orders the alteration and if the Attorney-General presents a fresh indictment, he appears to go behind the order ofCourt.
Cur. adv. vult.
October 7, 1940. Howard C.J.—
This appeal is based on the following grounds : —
That the Attorney-General had no power to present the indictment
on which the appellant was convicted.
That in the course of the trial the learned Judge allowed Crown
Counsel to confront the appellant with a statement alleged tohave been made by him to the Police Inspector under section 122of the Criminal Procedure Code. That such use of this state-ment was not authorised by law, that the statement was wronglyadmitted in evidence by the learned Judge and thereby amounted• to such misdirection as would vitiate the conviction.
If ground (a) is successful the conviction cannot be sustained and thenecessity for the consideration of ground (b) does not arise. The factswith regard to the presentment of this indictment against the appellantare that on June 5, 1940, before Cannon J. and a Jury the appellant wascharged by the Attorney-General on an indictment containing three counte.The first count contained the same charge as was presented to the Juryby the Attorney-General in this case, the second was a further charge .ofthe murder of one Leina Hamy, and the third was a charge of attemptedmurder. Before the indictment was. read to the appellant Crown Counselmade an application under section 217 (3) pf the Criminal ProcedureCode to withdraw count (3) of the indictment. He also stated thatit had been the practice in England and also that the Court of CriminalAppeal in England had commented on the fact that in an indictment formurder there should be only one count. In view of this reason CrownCounsel made an application under section 172 of the Criminal ProcedureCode to amend the indictment by deleting count (1) and proceeding
1 37 N. L. R. 60.3 28 N. L. R. 74 at 82.
* 15N.L. R. 422.* (1939) 16 G. TV. 10.
532
HOWARD C.J—The King. v. Emanis.
against the appellant on count (2). He, however, submitted that theCourt should reserve him the right to proceed against the appellant oncount (1) if the charge on count (2) failed or if the Attorney-General sodesired. Counsel for the appellant stated that he had no objection tothe amendment, but he objected to the Crown reserving any right toframe another indictment against the appellant if the present one failed.There was further argument and the learned Judge in making his orderstated as follows: —
“ In my view, however, the amendment of the counts of the indict-ment in respect of count (1), the object being for the reason stated byCrown Counsel, will not preclude the Crown from framing anotherindictment under count (1), should it think it necessary in the interestsof justice. The amendment will be as follows : Count (1) to be deletedand count (3) of the indictment withdrawn ”.
Counsel for the appellant then stated that he was prepared to go to trialon counts (1) and (2) rather than on count (2) alone. The Judge-thensaid that the amendment must stand as it is.
On August 19, 1940, an indictment containing count (1) of the originalindictment was presented by the Attorney-General against the appellant,before de Kretser J. and a Jury. Before this indictment was read to theJury, Counsel for the appellant raised an objection and sought to have theindictment quashed on the ground that the Crown had no legal right topresent the indictment at this stage. Counsel for the appellant employedthe same arguments as were submitted to Cannon J. de Kretser J. heldthat the objection could not be upheld and made the following order : —
l
“ The position now is this : the Crown did not withdraw the chargeunder section 217 of the Criminal Procedure Code. In effect what theCourt did was to order separate trials, following the suggestion madeby the Court of Criminal Appeal in Davies (1937, 26 Criminal AppealReports, p. 95). The Lord Chief Justice said there that the propercourse was to charge for each murder separately in a separate indict-ment. Mr. Justice Cannon feeling the force of that observation andseeing the Crown was pursuing a right course confined the trial to onecharge,andit could be confined to one chargeonly bydeleting the
other.Thisprocedure was adopted in the interests ofthe accused.
Quite clearly, therefore, the accused had not been convicted or acquittedon thefirstcount; the charge” against him hasnot been withdrawn,
and hestillremains liable to be tried for thatoffence.I, therefore,
think that the objection cannot be upheld and the case must go to trialThe case then proceeded to trial and the appellant was convicted ofthe offence of culpable homicide not amounting to murder and sentencedto five years’ rigorous imprisonment.
Counsel for the appellant in submitting that the trial and conviction ofthe latter on the second indictment was bad contends as follows : (a) Thatthe withdrawal of count (1) in the first indictment was not an alterationof the indictment within the ambit of section 172 (1) of the CriminalProcedure Code, and (b) that, if it is conceded that such withdrawal wasan amendment under section 172 of the Criminal Procedure Code, theAttorney-General had no power to present the second indictment. With
HOWARD C.J.—The King v. Emanis.
533
.regard to (a) Counsel for the appellant relied on the phraseology of sub-section (3) of section 172 which limited an amendment under sub-section (1) to the substitution of one charge for another in an indictmentor the addition of a new charge and did not authorise the withdrawal of acharge. The Attorney-General maintained that section 172 (3) was notexhaustive as contended by Counsel for the appellant. On this pointwe are in agreement with the Attorney-General and are of opinion thatthe words “alter any indictment” in sub-section (1) includes the “with-drawal ” of a count in an indictment.
The effect of the withdrawal of a count in an indictment is anothermatter and raises a point of considerable difficulty. The Attorney-General contends that, under section 165f of' the Criminal ProcedureCode he is at liberty to present against an accused person any number ofindictments provided they are founded on facts disclosed in the record ofinquiry on which the Magistrate has committed. This power is subjectto the limitations with regard to joinder of charges prescribed bysections 178-181 of the Code. With regard to count (1) of the firstindictment he maintains that there has been no verdict of discharge, butmerely withdrawal of a count in that indictment. In these circumstancesthe committal of the Magistrate in respect of the facts on which thisindictment is founded remains and it is open to the Attorney-General topresent another indictment.
The charge against the appellant being a criminal one the law must bestrictly construed and powers not vested in the Attorney-General by lawcannot be assumed or implied. Section 165f read with section 186provides for the presentment of indictments against an accused person bythe Attorney-General. Part IX. (Chapter XXXV.) of the Code vests inthe Attorney-General certain supplementary powers including the powerto exhibit to the Supreme Court informations for all purposes for whichHis Majesty’s Attorney-General for England may exhibit informationson behalf of the Crown in the High Court of Judicature. Section 217provides for the entering by the Attorney-General of a nolle prosequi.Section 172 merely empowers the Court to alter a charge or indictment.In connection with the powers of the Attorney-General it will be observedthat de Kretser J. in disallowing the objection to the indictment madeby Counsel for the appellant held that what in effect the Court did wasto order separate trials following the suggestion made by the Court ofCriminal Appeal in R. v. Davis'. The Attorney-General was unable toaccept such a position or to agree with de Kretser J. that this was theeffect of Cannon J.’s order. Following the judgment of the EnglishCourt of Criminal Appeal in R. v. Davis it was of course within the powerof the Court in proper circumstances to have made such, an order. Suchan order can, however, be made only as a matter of judicial discretionand to ensure that an accused is not by the joinder of more than onecharge in the indictment prejudiced in his defence. In this connectionreference is also made to the judgment of Wood Renton C.J. in The Kingv. Senanayake Cannon J. in this case did not purport to exercise ajudicial discretion in the interests of the accused. In fact Counsel forthe accused opposed the withdrawal of the charge and maintained he was1 16 Cr. A. R. 93.« 2Q N. L. R. S3.
534HOWARD C.J.—The King. v. Kadirgaman.
prejudiced thereby. We are, therefore, of opinion that the suggestionthat in allowing the amendment Cannon J. was merely ordering separatetrials is untenable…
On a strict interpretation of section 172 we are of opinion that itsprovisions merely authorise the Court to permit an alteration of thecharge. Those provisions do not vest in the Attorney-General a powerto frame a fresh indictment in respect of a charge withdrawn in pursuanceof the Court exercising its=powers of amendment under the section. Norcan we discover in the Criminal Procedure Code or in the inherent powersof the Attorney-General that in such circumstances he is vested with anysuch power. If it is desired to place the accused person on his trial inrespect of a charge so withdrawn, magisterial proceedings 'must becommenced “ de novo”.
For the reasons given the appeal is allowed and the appellant discharged.
Appeal allowed.