043-NLR-NLR-V-64-THE-QUEEN-v.-K.-SIRIWARDENE-et-al.pdf
SINNETAMBY, J.—The Queen v. Siritoardene
239
t
1961.Present:Sinnetamby, J., and Tambiah, J.
I
THE QUEEN v. K. SIRIWARDENE et al.
' S. C. 4-7—D. C. {Criminal,) Colombo, 1998IN
Criminal Prodedure Code—Section 1S4 — “ Same transaction"—Misjoinder ofcharges—Illegality.
Ton persons were charged on different counts with housebreaking in respectof two different houses, viz. premises Nos. 570 and 953. In respect of premisesNo. 570 the 1st accused was not charged with any offence, and in respect ofpremises No. 953 the 3rd accused was not charged with any offenco, but,nevertheless, all ten accused were joined in one indictment.
Held, that there was a misjoinder of charges. The mere fact that count 1 ofthe indictment stated that the offences Were committed in the course of thosame transaction could not cure the defect when in point of fact the evidencedid not disclose that they were so committed in the course of the same trans-. action.
Held further, that a misjoinder of charges is an illegality and not an irregu*larity capable of being cured.
Appeal from a judgment of the District Court, Colombo.
M.M. Kumarahulasingham, for the 4th accused-appellant.
3rd, 6th and 8th accused-appellants in person.
S. S. Wijesinha, Crown Counsel, for the Attorney-General.
February 15, 1961. Sinnetamby, J.—
There wore ten accused in this case and on counts 2 to 5 of theindictment the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th accused were chargedwith committing offences relating to an act of house-breaking whichwas committed in respect of premises No. 570, Pathiragoda. On counts6 to 10 of the indictment the 1st, 2nd, 4th, 5th, 8th, 9th and 10th accusedwere charged with offences relating to an act of house-breaking in respectof premises No. 953, Wattegedera. It will thus be seen that in respectof premises No. 570, the 1st accused is not charged with any offenceand in respect of premises No. 953 the 3rd accused is not charged withhaving committed any offence, but, nevertheless, all ten accused havebeen joined in one indictment. Count 1 relates to all the accused and itis suggested that they, in the course of the same transaction, did commithouse-breaking by entering into house No. 570, Pathiragoda, and alsohouse No. 953, Wattegedera.
* Objection is taken to the charges set out in the indictment on the groundthat there is a misjoinder of charges. This objection does not appear
to have been taken on behalf of the accused in the lower Court, but.
' *
the learned District Judge himself has discussed it in his judgment. Itmust be stated that some of the accused were unrepresented.
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SINNETAMBY, J.—The Queen v. Siriwardene
The question that now arises for our consideration is whether thismisjoinder amounts to an illegality which will render all proceedingsvoid or whether it is an irregularity which can he curefl.
Learned Crown Counsel sought to support the indictment on thefooting that section 184 of the Criminal Procedure Code permitted thejoinder of different offences provided they are committed in the courseof the same transaction. But, as was pointed out in the case of Jonklaasv. Somadasa1, community of purpose and continuity of action areessential elements necessary to link together different acts so as to formone transaction. In this particular case the accused in respect of onetransaction are different to the accused in rrespect of the other trans-action. In this case the 1st accused, according to the indictment, wasnot a party to the other act of house-breaking, though all the otherswere charged with having taken part in both acts. It will thus beseen that it cannot be said that all the accused acted jointly in respectof both acts of house-breaking and section 184 therefore will not apply.
In the subsequent case of Cooray v. Dias2 it was held that the merefact that the indictment states that the offences were committed in thecourse of the same transaction will not cure the defect if in point of factthe evidence does not disclose that they were so committed in the courseof the same transaction. That case, as in the case of SubrahmaniaAyyar v. King-Emperor2, held that a misjoinder of charges is an illegalityand not an irregularity capable of being cured..: –
In our opinion, in this case, there was a misjoinder of charges—thelearned District Judge, I may say, was also of the same opinion—andit is a defect which cannot be cured. The proceedings, therefore,- areillegal and the convictions are quashed. The case will go back forretrial before another Judge. The Crown may take such steps as theymay be advised to in regard to the indictment.
Tambiah, J.—I agree.
Convictions quashed.
1 {1042) 43 N. L. R. 2S4.
31. L. R. 25 Madras 61.
» 56 N. L. R. 234.