THE QUEEN v. N. THAMBIPILLAI and two others

019-NLR-NLR-V-66-THE-QUEEN-v.-N.-THAMBIPILLAI-and-two-others.pdf


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The Queen v. ThambipUlai
[In the Court or Criminal Appeal]
1963Present: Basnayake, C.J. (President), Herat, J.,and Abeyesundere, J.THE QUEEN v. N. THAMBIPILLAI and two othersAppeals Nos. 9-11 of 1963, with Applications Nos. 9-118. C. 2-—M. C. Kalmunai, 3948
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Indictment—Misjoinder of charges and persons—Joinder of charges based on unlawfulassembly with charges based on common intention—Invalidity—Penal Code,ss. 32, 140, 346jl46, 380/146, 346, 364, 380, 394—Criminal Procedure Code,,es. 178,180 (1), 184, 425—Interpretation Ordinance, s. 2 (ii).
Charges based on the liability created by common intention under section32 of the Penal Code cannot be joined in the same indictment with charges,based on the existence of an unlawful assembly.
Five accused were indicted on different counts under the Penal Code.In counts 1, 1a and 2 they were charged under sections 140, 346/146 and 380/146respectively. In counts 2a and 3 they were charged under sections 346 and380 respectively. In count 4 the 1st accused alone was charged under section394. In count 5 the 2nd accused alone was charged under section 364.
BASNAYAKE, C.J.—The Queen v. Thambipillai
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All the accused were acquitted of counts 1, 1a and -2. The 2nd and 3rdaccused were acquitted of the remaining charges also. The 1st, 4th and< 5th accused Were convicted of the offences alleged in counts 2a and 3, andthe 1st accused Was in addition convicted of the offence alleged in count 4.
Meld, that the joinder of counts 2a and 3 with counts 1, Ia and 2 was notauthorised by section 180 of the Criminal Procedure Code. In such a case,the illegality cannot be cured by section 425 or any other provision of theCriminal Procedure Code.
Meld further, that count 4 against the 1st accused alone and its joinder withthe other counts against all the accused including the 1st accused was illegal.
Appeal against certain convictions in a trial before the SupremeCourt.
Colvin R. de Silva, with V. Kumaraswamy and, Neville Wijeratne(assigned), for 1st, 4th and 5th accused, who are 1st, 2nd and 3rdappellants.
S. S. Wijesinha, Crown Counsel, for Attorney-General.
June 11, 1963. Basnayaxe, C.J.—
Five persons by name N. Thambipillai, R. Samithamby, K. Thambi-pillai, K. Velakuddy and K. Thambiappah were indicted on the followingcharges :—
“ 1. That on or about the 2nd day of August 1961 at Thuraineela-vanai, in the division of Batticaloa, within the jurisdiction of thisCourt, you were members of an unlawful assembly, the commonobject of which was to use criminal force on S. Bagawathy, otherwisethan on grave and sudden provocation, and that you have therebycommitted an offence punishable under section 140 of the PenalCode.
1a. That at the time and place aforesaid and in the course ofthe same transaction, you being members of the said unlawful assembly,,did in prosecution of the said common object, use criminal force tothe said S. Bagawathy intending thereby to dishonour the saidS. Bagawathy and, that you being members of the said unlawfulassembly at the time of the committing of the said offence are therebyguilty of an offence punishable under section 346 read with section146 of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction one or more members of the unlawful assemblyaforesaid did commit robbery of a gold chain, two pairs of gold banglesand one ring, property in the possession of S. Bagawathy, whichsaid offence was such as the members of the unlawful assembly afore-said knew to be likely to be committed in prosecution of the common
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BASNAYAKE. C. J.—The Queen v. Thambipillai
object of the said unlawful assembly, and that you being members• of the unlawful assembly aforesaid at the time of the committing ofthe said offence are thereby guilty of an offence punishable undersection 380 read with section 146 of the Penal Code.
2a. That at the time and place aforesaid and in the course of thesame transaction you did use criminal force to the said S. Bagawathyintending thereby to dishonour the said S. Bagawathy, and thatyou have thereby committed an offence punishable under section 346of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction, you did commit robbery of a gold chain, two pairsof gold bangles and one ring, property in the possession of S. Bagawathyand that you have thereby committed an offence punishable undersection 380 of the Penal Code.
That at the time and place aforesaid and in the course of thesame transaction, you the 1st accused abovenamed did retain stolenproperty, to wit, one gold chain, one pair of bangles and one ring,knowing or having reason to believe the same to be stolen property,and that you have thereby committed an offence punishable undersection 394 of the Penal Code.
t
That at the time and place aforesaid and in the course of thesame transaction, you the 2nd accused abovenamed, did commitrape on S. Bagawathy, and that you have thereby committed anoffence punishable under section 364 of the Penal Code.”
All the accused were acquitted of charges 1, 1a and 2. The 2nd and3rd accused were also acquitted of the remaining charges—2a,3,
c
4 and 5. The 1st, 4th and 6th accused were convicted of the offencesalleged in charges 2a and 3, and the 1st accused was in additionconvicted of the offence alleged in charge 4.
The submission of learned counsel on behalf of the appellants is thatthere is a misjoinder of charges and persons in the indictment. Now therule in regard to charges is stated in section 178 which reads—
“ For every distinct offence of which any person is accused thereshall be a separate charge and every such charge shall be tried separatelyexcept in the cases mentioned in sections 179, 180, 181 and 184, which,said sections may be applied either severally or in combination.”
<Of the exceptions referred to in section 178, those mentioned insections 179 and 181 have no application to the instant case. Only thosementioned in sections 180 and 184 need therefore be considered. Thematerial subsection of section 180 reads—-
“ (1) IT in one series of acts so connected together as to form thesame transaction more offences than one are committed by the sameperson he may be charged with and tried at one trial for every such
BASNAYAKE, C.J.—The Queen v. Thambipillai
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offence, and in trials tefore the Supreme Court or a District Courtsuch charges may be included in one and the same indictment.”
and section 184 reads—
“ When more persons than one are accused of jointly committingthe same offence or of different offences committed in the sametransaction or when one person is accused of committing any offenceand another of abetment of or attempt to commit such offence, theymay be charged and tried together or separately as the court thinksfit ; and the provisions contained in the former part of this Chaptershall apply to all such charges.”
The present indictment which contains a joinder of persons and charges• is presumably based on sections 180 and 184. For the exception createdby section 180 to be availed of—
(а)there must be one series of acts so connected together as to form
the same transaction ; and
(б)more offences than one committed by the same person in that
series of acts.
In a- case where more offences than one are committed by the sameperson in a series of acts so connected together as to form the sametransaction, he may be charged with and tried for every such offenceat one trial. By virtue of the rule in section 2 (ii) of the InterpretationOrdinance, words in the singular number may be read as including theplural. When, therefore, the same persons commit more offences thanone falling within the ambit of section 180, those offences can be chargedand tried together. Charges 1, Ia and 2 refer to a series of acts soconnected together as to form the same transaction. Offences committedby the same persons in that series of acts can therefore be joined. Now,although charges 2a and 3 recite that the offences stated therein werecommitted in the course of the same transaction as the other charges,they in fact are independent charges which bear no reference to theseries of acts connected with the act of unlawful assembly to which theprevious charges relate. 2a and 3 charge all the accused with jointlycommitting the offence specified therein. Charges 2a and 3 can beproperly joined as the acts specified therein appear to be so connectedtogether as to form the same transaction ; but they cannot be joinedwith charges 1, Ia and 2. The 4th charge is against the 1st accusedalone and its joinder with the other charges against all the accusedincluding the 1st accused is not authorised by section 180. Theseobservations apply to the 5th charge which was against the 2nd accusedwho was acquitted of that charge.
Although section 146 of the Penal Code is referred to in charges Iaand 2, the prosecution does not appear to rely on the liability createdby that section. In the instant case, as the allegation is that all themembers of the unlawful assembly jointly committed the offence ofusing criminal force and the offence of robbery, learned Crown Counselargued that the charges Ia and 2 charge the accused with specific offencesunder section 146 of the Penal Code. He relies on the remarks of Lord
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BASNAYAJLE, C-J. —The Queen v. Thanibipillai
Sumner in the case of Barendra Kumar Ghosh v. Emperor and especiallyon the following words at page 7 in 1925 A. I. R. {Privy Council) :—
“ Section 149, however, is certainly not otiose, for in any case itcreates a specific offence and deals with the punishment of that offencealone.”
That observation occurring in the judgment is obiter. Section 146 ofour Penal Code (which is the same as section 149 of the Indian Penal Code)reads—
“ If an offence is committed by any member of an unlawful assemblyin prosecution of the common object of that assembly, or such as themembers of that assembly knew to be likely to be committed inprosecution of that object, every person who, at the time of the com-mitting of that ‘ offence, is a member of the same assembly is guiltyof that offence.”
The words “that offence ” in the last sentence mean the offence whichthe members of the unlawful assembly committed in prosecution of thecommon object.
We were informed at the argument that in S. C. 707-711 of 1962/M. C.Matara 66552 (S. C. Minutes of 6th May 1953)1 the case of Heen Baba a,which is a decision of this Court, was regarded as a decision which laysdown the proposition that charges depending on the liability createdby section 146 of the Penal Code may be joined with charges in respectof the same acts depending on the liability created by section 32 of thatCode.
We are unable to agree that Heen Baba's case decides that point.Tn, that case the accused were indicted on six charges all based on theexistence of an unlawful assembly the common object of which was tocommit house-breaking and robbery. The jury acquitted them of allthe charges ; but, acting on the directions of the presiding Judge thatit was competent to them to find them guilty under sections 443, 380,383 and 382 read -with section 32, the jury found the accused guiltyof those offences. This Court held that the direction was wrong andquashed the conviction of the accused. The Court did not give itsmind to the legality of the joinder of another set of charges based onthe liability created by section 32 and the judgment is not an authorityfor the proposition that such a joinder is legal.
A judgment is an authority only for what it decides. The resultin the instant case then is that there has been a misjoinder of charges.The question that remains for our decision is whether we should quashthe conviction and direct that a judgment of , acquittal be entered ordirect a new trial. Having regard to the fact that the illegality is onethat cannot be cured by section 425 or any other provision of theCriminal Procedure Code, the proper course in our opinion is to quashthe conviction and direct that a judgment of acquittal be entered, and weaccordingly do so.
Accused acquitted.a (1950) 51 N. L. R. 265.
1 (1963) 65 N. L. R. 29.
H. N. G-. FERNANDO, J.—Registrar-General v. Tikiri Banda
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Present: H. N. G. Fernando, J., and Sinnetamby, J.THE REGISTRAR-GENERAL, Petitioner, and K. A. TIKIRI BANDA
and others, Respondents
S. C. 236/1961—Application in Revision in D. G. Colombo, 2927/X
Birth registration—Errors as to name and sex—Correction by order of District Court—Scope—Births and Deaths Registration Act, No. 17 of 1051, ss. 28, 52 (1) {h).
Section 28 of the Births and Deaths Registration Act confers no jurisdictionon a District Court to alter the name of a person whose birth has been registered,until the person attains majority. Nor does it provide for the alteration of theentry relating to sex in a birth registration.
A PPLICATION to revise an order of the District Court, Colombo.
Mervyn Fernando, Crown Counsel, for petitioner.
C. Perera, for respondents.
Cur. adv. vvlt.
December 15, 1961. H. N. G. Fernando, J.—
This is an application made by the Registrar General for the revision ofan order made by the District Court of Colombo under the Births-andDeaths Registration Act, No. 17 of 1951. It would appear that thepresent 2nd respondent was bom on 2nd April 1954, being the child of the3rd respondent by her husband the 1st respondent. The birth wasregistered on 24th April 1954, the name of the child being registered as“ Sunil ” and its sex as Male.
In June 1960, the 3rd respondent made an application to the DistrictCourt for an order directing the Registrar-General to alter the registrationentries relating to the name and sex of the child to the female name“ Sunila ” and to Female respectively. After recording some evidence,and being satisfied that by some mistake or “ twist of fate ”, there hadbeen an error at the time of the registration of the birth (as to the nameand sex of the child) the District Judge made order allowing the applicationand directing the Registrar General to effect the alterations. This orderwas made purportedly under section 28 of the Ordinance. It is howevermanifest—
that, although paragraph (a) of section 28 (1) authorises a court to
order the alteration of the names of a person whose birth hasbeen registered, such an alteration cannot be made until theperson attains majority ;
that section 28 does not provide at all for the alteration of the entry
relating to sex in a birth registration.
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TAMBIAH, J.—Bede v. Boteju
The order of the District Judge made on February 21st 1961, directingthe alterations prayed for, was clearly made without jurisdiction and ishereby set aside.
The mistake, if any, made in regard to the registration of the birth wasan unusual one, and it is not surprising that the Act does not provide forsuch a situation. Section 52 (1) (h) of the Act would appear to enablethe Registrar General himself to correct an error of fact or substance, buthaving regard to the context in which that power is conferred it would inmy opinion be exercisable only if it is clear to the Registrar General thatthe registration entry is not in accordance with the particulars furnishedto the Registrar in the “ information ” given under the Act which precededthe registration of the birth. I have no doubt that if such has been thecase in this instance, the Registrar General will after due inquiry rectifythe position under section 52 (1) (h). But if such has not been the case,the Law at present provides no remedy for the situation which, accordingto the parents of the child, has arisen in this case. The Registrar Generalwill no doubt invite the attention of the proper authorities to the needfor some amendment of ibhe Law which may deal with such unusualsituations.
Sinnetamby, J.—I agree.
Order set aside.