The King v. Iyer.
1936Present; Abrahams C-J. and Maartensz J.THE KING v. IYER et al.
54/55—D. C. (Crim.) Mullaittivu, 69.
Joinder of accused—Same offences committed in two different transactions—Criminal Procedure Code, ss. 179, 180 and 184.
Two persons may be jointly tried for offences committed in the courseof two distinct transactions provided the offences are identical.
The King v. Arlisappu (2 C. L. Rec. 189) over-ruled.
ASE referred by Abrahams C.J. to a Bench of two Judges. Thefacts are stated in the reference which is as follows :—
The appellants with a third man, who has not appealed, were convictedat one trial of burglary and theft in respect of two houses on the same date.There were four counts, each offence being separately charged. Theyappealed first, on the ground that the trial was illegal through misjoinder ofcharges, and secondly, that assuming the joinder was lawful the evidencedid not justify the conviction.
I have found against the appellants on the second ground, and on the firstground I am of the opinion that the appeal should be referred to a Bench oftwo Judges, as my attention has been directed to a decision of Schneider J.in the King v. Arlisappu in which it was held in parallel circumstancesthat the trial was bad through misjoinder. In that case four persons werejointly charged—(1) with housebreaking and (2) theft of goods from A, and(3) housebreaking and (4) theft of goods from B. The learned Judge said: —“ The joinder of the four accused is sanctioned by the provisions ofsection 184.
“Section 179 sanctions the joinder of the two charges of housebreakingonly or of theft only but not the joinder of one or more of the charges ofhousebreaking with one or more of the charges of theft. Section 180 (1)sanctions the joinder of one of the charges of housebreaking with the theftwhich can be regarded as part of the same transaction but not the joinderof the two charges of housebreaking and of the two charges of theft, forthey are two distinct transactions.
"It follows therefore that sections 179 and 180 (1) applied severally or incombination do not sanction the joinder of the four charges.”
With all respect I am unable to concur with that decision. It appears to methat Schneider J. did not give adequate consideration to the application to thecase of sections 179 and 180 of the Criminal Procedure Code in combinationas sanctioned by the concluding words of section 178.
I am of opinion that those words enable two criminal transactions to bptried together, provided that the offences in the one transaction are identicalwith the offences in the other. To explain that view with reference to thefacts of this particular case, it would appear that the first burglary beingtriable with the second burglary, and the first theft being triable with thesecond theft by virtue of section 179; and the first burglary being triablewith the first theft, and the second burglary being triable with the secondtheft by virtue of section 180 it follows that a combination of the two sectionsenables the four charges to be tried together. I am unable to see howotherwise the concluding words of section 178 can have any meaning asregards an application in combination of sections 179 and 180.
L. A. Rajapakse (with him S. Soorasangaran), for accused, appellants.—Section 179 of the Criminal Procedure Code permits the joinder of offences
*2C.L. Rec. 189.
ABRAHAMS C.J.—The King v. Iyer.
of the same kind, and section 180 permits the joinder of different offencesforming the same transaction, in cases where there is only one accused.Section 184 deals with the cases of more than one accused.
Section 179 may be combined with section 180, but section 184 cannotbe combined with section 179 or 180, because the latter sections apply tothe trials of one accused only, whereas section 184 applies to trials of morethan one accused.
The only section that is applicable here is section 184, because there arethree accused in this case.
Housebreaking and theft are distinct offences. (The King v. AmolisAppu '.)
Therefore there is a misjoinder unless they were committed in the sametransaction. Whether offences are committed in the same transaction ornot, is a question of fact. There must be a continuity of action andpurpose. (The King v. Aman'.)
In Rex v. Arlisappu* Schneider J. held that, in similar circum-stances, there was a misjoinder.
Counsel also cited 3 Cr. Law J. 93 (Indian) and Krishnasami Pillai v.King Emperor *. Misjoinder of charges is an illegality, not a curableirregularity. (The King v. Subramaniam ’.)
J.W. JR. Illangakoon K.C., A.-G. (with him Pulle C.C.), for respondent.—Unlike the Indian section 233, our section 178 permits the applicationof these sections in combination. The combination of section 184 withsection 179 justifies the present indictment.
Assuming section 184 alone applies, the two offences of theft and house-breaking in the two houses were committed in one night within four orfive hours. It is clear they formed part of the same transaction.
It is always a question of fact whether certain offences form part of thesame transaction or not. See The King v. Amah (supra). The judgmentof Schneider J. in The King v. Arlisappu (supra) should be reconsidered.
October 21, 1936. Abrahams C.J.—
I see no reason to recede from or vary in any way the opinion which Iformed when I referred this matter that two persons could be jointlycharged and tried in respect of two distinct transactions when theoffences which were included in those transactions were identical. Mybrother Maartensz agrees with this view.
It has however been urged upon us by Mr. Rajapakse that the appellantswere not actually charged with having been concerned in two differenttransactions but that the offences were specifically stated to have beencommitted in one transaction. This procedure was obviously adoptedin order to avoid the consequences of the decision of The King v. Arlisappu3from which we now differ. It has been represented to us that the chargewas in point of fact accurate. But the question as to whether a particularseries of events does or does not form one transaction is a very complicatedmatter depending entirely on the individual circumstances of each case andas our finding one way or the other whichever it may be, may be taken as aprecedent for future cases we think it better not to give a decision on this
1 2 Bal. Rep. 81.» 2 O. L. Rec. 189.
• 21 N. L. R. 375.» 26 Madras 125.
* 25 Madras 61.
Sabapathy v. Huntley.
jp>int. Assuming that there were two transactions and not one, the formof the charge containing words of surplusage, was a mere irregularityeurable under the provisions of section 425 of the Criminal ProcedureCode. The appellants suffered no prejudice by the form of the charge asthe offence was very clearly made out.
We therefore dismiss the appeal.
Maartensz J.—I agree.
THE KING v. IYER et al