( 252 )
IMS.Present: Lascelles C.J.
THE KING v. MENDIS.
36—D. C. (Crim.) Galle, 13,809.
Trial—Joinder of chargee—Accused tried on three separate indictmentsat one trial—Illegal—Criminal Procedure Code, as. 180 and 42S.
The accused was tried at one trial on three indictments con-taining five charges. The first indictment charged the accused (a)under seotion 208 of the Penal Code with having falsely chargedone Aron Mendis before a police sergeant on November 26 atAmbalangoda, and (6) under section 180 with having given falseinformation to the same police sergeant at the same time and place.The second indictment charged the accused (a) under section 208with having falsely charged Aron Mendis before a Sub-Inspectorof Police at Bentota on November 27, and (b) under section 180with having given false information to the, same Sub-Inspector atthe same time and place. The third indictment charged theaccused under section 190 with having given false evidence beforean Inquirer in certain inquest proceedings held at Ambalangodaon November 29.
Held, that the trial of the accused on these separate indictmentsat one trial was illegal and fatal to the conviction.
r'j~lHE facts are set out in the judgment. ,
H. J. C. Pereira (with him Sampayo, K.C., and Allan Drieberg),for' the accused, appellant.—The accused was tried at one trialon three indictments containing in all six counts. This is illegal,and is fatal to the convicton. Counsel cited The King v.Kanjamanadan,1 Submhmariian Ayer v. King Emperor.2
Garvin, Acting S.-G., for the Crown.—There was nothing toprevent all the five counts in the three separate indictments being,included in one indictment. The accused could have been triedat one trial on all the five counts in that case. See section 180 of .the Criminal Procedure Code.
If the accused could have been tried at one trial on all thecounts, the mere fact that the counts are contained in three andnot in one indictment does not make any difference. The accuseddid not object to his being tried on all counts at one trial. Itwould seem that counsel on both sides agreed to this procedure.The irregularity—even if it be one—is not fatal to theconviction.
Cur adv. vult.
» (1903) 7 N. L. R. 52.
I. L. R. 38 Mad. 61.
( 253 )
May 14, 1913. Lascellbs C.J.—
This is an appeal against the conviction of the acciised on theground of misjoinder of charges. The facts on which the prosecu-tion depends are simple enough, but for some reason the case hasbeen thrown into confusion by the filing of no less than threeindictments containing in the aggregate five counts. Why threeindictments were prepared and signed at all is difficult to say, butit cannot have been the intention of the Crown Counsel that theyshould be tried simultaneously. The first indictment charges theaccused (a) under section 208 of the Penal Code with falsely chargingone Aron Mendis before a police sergeant at Ambalangoda onNovember 20, and (6) under section 180 of the Penal Code withgiving false information to the same police sergeant at the sametime and place. The second indictment charges the accused (a)tinder section 208 with falsely charging Aron Mendis before a Sub-Inspector of Police at Bentota on November 27, and (6) undersection 180 with giving false information to the same Sub-Inspectorat the same time and place. The third indictment charges the (accused under section 190 of the Penal Code with giving falseevidence before an Inquirer in certain inquest proceedings held atAmbalangoda on November 29. There is no objection, as regardsjoinder of counts, to any one of these indictments, but by someblunder, which has not been explained, the accused was triedsimultaneously on all indictments and was convicted on all thecharges in each of the indictments.
There is no provision in the Criminal Procedure Code which allowssuch proceedings. It was suggested by the Acting Solicitor-Generalthat* the charges all related to acts so connected together as to formthe same transaction, and that the joinder of these counts wasjustifiable under section 180 (1) of the Criminal Procedure Code.
But even if the acts charged are of this character, the sectioncontemplates their being included in one and the same indictment,and there is nothing in that section or elsewhere in the Code toauthorize the inclusion of these counts in three separate indictmentsand the simultaneous trial of the indictments. That the procedureis highly irregular there can be no doubt. The only question iswhether the irregularity is fatal to the conviction, or whether it iscured by section 425 of the Criminal Procedure Code. On principleas well as on authority I am clearly of opinion that the course whichhas been taken in this case is more than a mere irregularity. TheCourt, in purporting to try these three indictments together, didthat which it had no jurisdiction to do. Vide the decision of thePrivy Council in Subrahmanian Ayer v. King Emperor,1 where it washeld that the inclusion in an indictment of a greater number ofcounts than that allowed by law was not a mere irregularity butwas fatal to the conviction.
11. L. B. 3$ Mad. 61.
Further, it is impossible to hold that the accused was not pre-judiced by the course taken. His position is obviously worse thanit would have been had he been tried on any one of the indictments.That this is so is apparent by comparing the position in which theaccused would have been if he had been tried on one indictmentonly with that in which he was placed at the trial. If, for example,only for giving false evidence at' the inquest, he would obviouslyhave been in a better position than he was when two other indict-ments were before the Court charging him with having made falsestatements about the same matter on four different occasions.
In my opinion, the simultaneous trial of these three indictmentsis a fatal irregularity, and I set aside the conviction and acquit anddischarge the accused.
THE KING v.MENDIS