088-NLR-NLR-V-18-THE-KING-v.-PERIS-et-al.pdf
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Present: Wood Benton C.J.
'l’HE KING V. PERIS et al.114-178—D. C. Colombo, 3,847,
VntaioftU assembly—Penal Code* s. 188—“ Other offence" not ejo®d»mgeneris with those immediately preceding.
* The words *' other offence ** in danse 3 of section 138 of thePenal Code do not mean an offence ejusdem generis with thoseimmediately preceding, namo>\ mischief and criminal trespass.
fjl HE facts are set out in the judgment.
b Obeyesekerc, for the accused, appellants.
8. Obeyesekere, C.C.t for the respondent.
November 19, 1914. Wood Renton C.J.—
This case raises an interesting question of law. The accusedwere charged, on a number of counts, with unlawful assembly, withthe common intention of committing grievous hurt, and variouskindred offences. They have been convicted and sentenced toheavy terms of imprisonment. The appellants’ counsel has contendedthat the convictions on the counts of unlawful assembly are bad,inasmuch as the common intention alleged is to commit offencesother than those specified in the various clauses of section 138 ofthe Penal Code, and in support of that contention he relies upon adecision of Mr. Justice Withers in Muriwara v. Danta, 1 and ofMr. Justice Pereira in King v. Carupiak, 3 to the effect that thewords " other offence f* in clause 8 of section 138, the only clausein which the term 11 offence ” occurs in that section, mean an offenceejusdem generis with those immediately preceding, namely, mis-chief and criminal trespass. The clause in question is no doubtawkwardly expressed. But there is an instructive commentaryin Gour on the history and scope of the corresponding clause insection 141 of the Indian Penal Code. * “ Strictly speaking, ”says that learned commentator. 11 the other offence must be ejusdemgeneris, otherwise the preceding enumeration was unnecessary. Ifthe clause, then, means to ‘ commit any offence, ’ why should ithave specified, of all others, the two offences of mischief or criminaltrespass? In the original draft the words used were 1 or to commitany assault, mischief, or criminal trespass, or wrongfully to restrainany person, or to put any person in fear of hurt or of assault,or wantonly to insult or annoy any person. ' The words enactedwere subsequently substituted for these. But if this was necessary,
* (1896) 6 Tamb. 78.
a (1914) 17 N, L. R. 388; 1 Coot ay's C. R. OS.
Goer. 56*5.
J. N.A 90803 (8/50)
1914.
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1814. tile retention of the words 1 mischief or criminal trespass 9 has notimproved the sense. However, the clause is ^intended to IncludeRbhtoh CJ. all offences both against person or property, and not only mischief,TheKing v cr^m^na^ trespass, and (offences) ejusdem generis* M It would seem,Peris * therefore, that the words *' mischief or criminal trespass** havebeen retained in the Indian Penal Code per jncuriam, and that ourown Penal Code has repeated the mistake. The same view isexpressed very briefly in Batanlal on the Law of Crimes 259, wherein commenting upon the term “ offence " he refers to section 40 ofthe Indian Penal Code, which is praatfe&tiy identical wish section 38of our own Code, and which appears to me to show that a widerinterpretation should be put on the term “ offence ’* in the clausewith which we are here concerned than that which it has receivedin fhe coses above referred to. The view of Gour is in accordancewith the English law as to unlawful assembly. In Stephen's Digestof the Criminal Law of England, art. 75, the assembly, according toEnglish rule, of three or more persons with intent to commit “ anycrime by force or violence ” is said to constitute an unlawfulassembly. On these grounds I hold that the point of law taken infavour of the accused must fail, and after having carefully read theevidence, I see no reason to differ from the finding of the learnedDistrict Judge upon the facts.
Appeal dismissed.