015-NLR-NLR-V-57-THE-QUEEN-v.-THIAGARAJAH-et-al.pdf
[Assize Covet]
195£Present: Gratiaen, J.
THE QUEEX v. THIAGARAJAH cl al.2nd Xorthern Cikcuit
S. C. V—M. C. MaUakam, 1,408
Indictment—Charges contained therein—Must not he different from those inquiredinto by Magistrate—Scope of Attor,iey-Gcncre,Vs power to re-open Magisterial■ inquiry—Criminal Procedure Code, ss. 100, 109, ICO, 161, 162 (7), 163, 3S9,390 (2), 391, 393.
Penal Code—Unlawful assembly—Sections, 13S, 110.
An accused person can in no circumstances be committed for trial or triedupon indictment under Chapter 16 of the Criminal Procedure Code except uponI ho basis of the charges which had been read out to him under section 156 and"to which ho was later called upon to answer in terms of sections 159 and 160.Tho power of a Magistrate to commit under section 163 and tho powers of theAttorney-General to direct a committal under section 391 are both determinedby tho scopo of the particular charges which formed tlio subject -matter ofthe Magisterial inquiry ; tlie only exception recognised by- tho Code is in respectof offences of which a man may lawfully be convicted upon ft trial of the chargesactually- inquired into.
If the Attorney-General takes the view that an accused poison ought to becommit tod for an offeneo other than that- for which ho had been spccificallychargcd (or other than an offence for which ho might lawfully- havo been con-victed if properly committed) he may instruct tho Mngistrato under section390 (2) to reopen tho proceedings by founulating on amended chargo undersection 15G, and thereafter to take all the steps prescribed by- Chapter 16. Itis not permissible. to give a. direction that iho accused person should bocommitted for trial upon an amended charge after complying only with thorequirements of sections 159, 160 and 161.
A person cannot bo convicted of the offence of being a member of an unlawfulassembly except in association with four others.
PREL1 A1.IXARY objection raised against tho validity of theindictment in a trial before the Supreme Court.
3/. Balasunderam, with S. Gurunalhan, for the 1st accused.
A. Amirlhalingam, for tho 2nd accused.
X. T. D. Kanakaralnc, Crown Counsel, for tl
Cur. adv. rult.
August 1, 1955. Ghatiaex, J.—
A retired post-master named Kndircsu Sambandar (of tho Vellalacommunity) lived with his wife in the village of Urelu, where lie cultivateda plantain garden adjoining tho compound of his house. The adjoiningallotment of land, similarly cultivated, belonged to Thevasi Kanavatliy(a Palla man).
Mr. Sambandar also owned some cattle. At about 2 a-.m., on 21stOctober, 1953, he woke up and went into his compound to tether a cow-calf. Shortly afterwards, his wife heard some suspicious noises and,as her husband had not yet returned, she and their immediate neighbours(tho Thambidurais) went in search of him. A few moments later thoyheard the sound of a gun being fired, and of people running away.Mr, Sambandar was found lying, with bleeding injuries, near the entranceto Thevasi Kanavathy’s land. He was not in a fit condition to makea dying declaration before he died. He had sustained a blow on thehead with a heavy, sharp cutting instrument and had also been shotin the stomach from a very close range. Each injury was necessarilyfatal. It was also discovered that 135 plantain trees standing on ThevasiKanavathy’s land had been wantonly destroyed. Obviously more thanone person had been concerned in the commission of these crimes.
The Police were unable for some time to discover any clue to thomystery. There had admittedly been caste ill-feeling in the locality,and Mrs. Sambandar suspected that her husband had been murdered,by members of the Palla community. Thevasi Kanavatliy, on the otherhand, was equally convinced that Yellalas were responsible for tiremischief committed on his land. Tho most likelj' theory, of course, isthat a number of people entered Thevasi Kanavathy’s land with theprimary object of causing damage to it, .and, in order to escape detection,murdered Mr. Sambandar when lie unexpectedly arrived oil the scene.
A few Palla men were from time to time arrested on suspicion, but.they were released after the Police contacted a motor-car driver namedI'. Krishnasamy on 12th November, 1953. He was detained (perhaps:illegally) in Police custody for about four days, and eventually told t-hemCa remarkable story in consequence of which tho three prisoners whoappeared before this Court were eventually prosecuted upon tho followingindictment dated 25th June, 1955 :'
“ (1) That on or about the 21st day of October, 1953, at- Urelu, in thodivision of Jaffna, within the jurisdiction of this Court, you-with one Swaminalhan Thiagarajah and another person unknownto the prosecution were members of an unlawful assembly the.common object of which was to commit mischief by cuttingdown the plantain trees standing on a land at Urelu cultivatedby one Thevasi Kanavat-hy; and that you have, thereby.committed an offence punishable under section 140 of the Penal
Code.
That at the time and place aforesaid and in tho course "of the sametransaction one or more of the members of tho said unlawful- assembly did use force or violence in prosecution of the common
– object of the said unlawful assembly ; and tliafc you liavc thereby… committed an offence punishable under section 144 of the Penal
Code. – ..’-..
f3) That at the timo and place aforesaid and in the course of the same-transaction one or more members of the said unlawful assemblydid commit murder by causing the death of one KadiresnSambandar, which offence was committed in prosecution ofthe said common object, or was such as the members of the saidunlawful assembly knew to be likely to be committed inprosecution of the said common object, and that you being' • members of the said unlawful assembly at the time of the• committing of the said offence of murder have therebycommitted an offonco punishable under section 29G read with*section 146 of the Penal Code. •
That at the timo and place aforesaid and in the course of the sametransaction you Kandiah Tliiagarajah, the 1st accused, and aperson unknown to the -prosecution did commit murder by causingthe death of the said Kadiresu Sambandar ; and that youKandiah Thiagarajah, the 1st accused, have thereby committedan offence punishable under section 296 of the Penal Code. ’’
A preliminary objection was raised on behalf of all three prisoners’to theeffect that they had been improperly committed for trial upon thesecounts, and that the indictment-should be quashed.
It was argued that each count in this indictment is fundamentallyat variance with the charges which formed the basis of the Magisterialinquiry ; that the Magistrate, in the exercise of his judicial discretionunder section 162 (1) of the Criminal Procedure Code, had dischargedivll three prisoners and their (then) co-accused, four in number, on theparticular charges under inquiry ” ; and that the Attorney-General’ssubsequent directions (which had been obeyed by the Magistrate) requiringhim to commit the- prisoners for trial upon substantially different charges(now contained in the indictment) were ultra vires. I upheld the objectionanil quashed the indictment, ordering the prisoners to bo released fromIFiscaFs custody.
The proceedings against the three prisoners and their co-accused underChapter 16 of the Code had commenced on 30th November, 1953, bythe Magistrate reading out the charges which formed the subject matterof the inquiry. These charges were later amended in minor icspccts onthe instructions of the legal adviser of t-lie Police. Accordingly, theinquirv commenced afresh on 10th February, 1954, when it was duly-cxplaiiicd to the three prisoners and their co-accused under section 156of the Code that they stood charged with the commission of 12 offences :
the first charge alleged that 5 persons consisting of the three prisonersand ttco named co-accused'had been members of an unlawful.assembly the common objcct-of which was to commit- mischief
— by cutting down the plantain trees on Thevnsi Kanavathy’s
land ; and it was not alleged that any person besides -these5 persons had been a member of the unlawful assembly ;
. (2) the second charge alleged that the. same. 5 persons were guilty of. rioting in prosecution of their common object ;. .
the third charge alleged that mischief had been committed by one
■ or more members* of the said unlawful assembly in prosecutionof their common object ;
the fourth charge similarly alleged that' the murder of Mr.
.Sambandar had been committed by one or more members of
. the unlawful assembly in prosecution of their common object ;
the fifth charge alleged that the three prisoners and two named
co-accused had committed mischief;
(6J the sixth charge alleged that one of the other accused (not himselfan active member of the unlawful assembly) had abetted thecommission of the offence of mischief ;
(7) the seventh charge alleged that yet another co-accused (also nota member of the unlawful assembly) had abetted the commissionof the same offence ;
(S)the eighth charge alleged that the 1st prisoner and one of his co-accused- named 3Iuruge.su Sinncidurai (who’ had since beendischarged) had committed the murder of Mr. Sambandar ;
(the additional charges numbered 9 to 12 arc not material tothe present discussion).
It will be observed generally that the ease for the prosecution was to theeffect that the unlawful assembly consisted of ‘precisely o named accusedpersons, instigated by 2 other named co-accused. In support of all 12charges, the prosecution relied almost entirely on the evidence of themotor-car driver Krishnasamy. and on certain statements of a confessionalcharacter alleged to have been made by some (but not all) of the 7 accusedpersons.-
The witness Krishnasamy was, according to his own version, a mostdisreputable character who claimed to have been engaged on the nightin question in transporting illicit immigrants by motor-car and thereafterin conveying a number of persons to Thcvasi Kanavathy’s land wherethe murder was committed..-• – •
Oil12th August, 1954, the learned Magistrate decided that there wasinsufficient evidence to put any of the accused persons on trial. Accor-dingly, they were all discharged under the provisions of section 162 (1)of the Code.' -'’
So matters stood until about three months later, when the Law Officersof the Crown intervened.- On 24th November, .1954, the Solicitor-General(acting under the authority of the Attorney-General in terms of section393) issued a direction to the Magistrate under section 391 to re-open the
inquiry into “ the charges ” preferred against the 1st, 2nd and 3rd prisonersand against one of their co-accused named Sicaminalhan Thiagarajah,but not against tho three other persons previously accused. The specificdirections •were that the Magistrate should (a) record any further evidenceadduced by the prosecution, (6) read “ the said charges ” to the accusedas required by section 159, (c) comply with tho provisions of sections160 and 161, and (tf) commit the 3 prisoners and SwaminathanThiagarajah for trial to the Supreme Court upon tho said charges
The 3 prisoners were re-arrested and produced before the Court, andfurther evidence was recorded in their presence. Efforts to trace thewhereabouts of Swaminathan Thiagarajah, however, proved of no avail.Tho prosecution therefore decided to proceed for tho time being againstonly tho 3 prisoners, the case against Swaminathan Thiagarajah being-left- in abeyanco.''
The case against the prisoners still rested largelj’ on the evidencowhich the Magistrate had previously considered insufficient to justify acommittal. But, being bound by the Solicitor-GeneraFs directions,he made a brave attempt to comply with them. He discovered, however,that strict obedience would produce a most incongruous result. Thereason was that-, whereas 5 persons (no more, no less) wore alleged in.“ the said charges ” to have formed themselves into an unlawful assembly,one of them (Murugesu Sinnadurai) had already been discharged, and theSolicitor-General had given no direction that tho order in his favour shouldbe- vacated. In these circumstances it was felt that the prosecutionof the remaining 4 members of tho alleged unlawful assembly wouldrest on an illegal foundation—there being an insufficient quorum ofallegedly guilty persons to constitute an unlawful assembly as definedby section 13S of the Penal Code. Finding himself in this predicament,t-lic Magistrate invited the Attorney-General’s department to clarify theearlier directions received by him. In reply, he received a fresh communi-cation, dated 2nd March, 1955, and signed by a Crown Counsel, directingthe Magistrate to amend the charges based on the alleged formation ofan unlawful assembly by substituting the name of Duraisamy Velupillaifor that of Murugesu Sinnadurai against whom the case has not beenre-opened.
These new directions, purporting to have been given oil behalf of theAttorney-General under section 3S0 of the Criminal Procedure Code,were clearly ultra vires. In the first place, section 3S9 only empowers,the Attorney-General to order fresh, evidence to be recorded aftercommittal if in his opinion the earlier evidence forming the basis of thecommittal was not sufficient to afford a foundation for a full and propertrial In the second place, it had never been alleged in “ the particularcharges ” read out to tho prisoners at tho commencement- of tho inquiryunder Chapter 10 that Duraisamy Velupillai had in fact been a memberof the unlawful assembly: on the contrary, the implied suggestionat that time was that- ho had not. And finally, Duraisamy hadalready been discharged from the proceedings and there was-nodirection that- the case against him should be re-opened for any purposewhatsoever.
Ail or Bomo of these difficulties seem to have boon realised 10 day*later by the Department, and on 12th March, 1955, a further communi-cation was sent to the Magistrate cancelling the letter dated 2nd March,1955- Instead, Crown Counsel purported to give fresh directions int he name of the Attorney-General (also under the provisions of section 389tchich tens inappropriate) requiring the Magistrate to take action asfollows:—–
(A) to read out to the 3 prisoners under section 159 of the Code certain' amended charges alleging (1) that they, together with Swnmina-than Thiagarajah “ and another person unknown to the prosecu-tion ” had in truth been the members of the alleged unlawfulassembly, and (2) that the murder of Mr. Sambandar had beencommitted by the 1st prisoner and this “ unknown person ” ;
(11) to commit the prisoners for trial on these amended charges.
It must here be observed that no direction was given that the amended,charges should be read out to the prisoners under section 156 and that-fresh proceedings under Chapter 16 should be taken from that earlierstage.
The defence very naturally protested against this further change offront on the part of the prosecution. The learned Magistrate, however,considered himself under a statutory obligation to obey’ the Attorney -General’s directions. Accordingly, but without enthusiasm, the charges-(amended as directed) were formally read out and explained under sect ion159 to the prisoners, each of whom, while protesting his innocence,truthfully replied as follows in answer to the statutory question addressedto him under section. 160: –■
‘‘ I am not guilty. There is no inquiry in respect of these charges
I am satisfied that in the circumstances described by me the order ofcommittal and the subsequent indictment embodying the charges so-amended were invalid and contrary to the provisions of the CriminalProcedure Code.
In England, “ when a person charged has been committed for trial, theindictment presented against him may include, either in substitutionfor or in addition to counts charging the offence for which he was commit-ted, any counts founded on facts or evidence disclosed in any examinationor deposition taken before a justice in his presence, being counts whichmay lawfully bo joined in the same indictment ”. Administrationof Justice (Miscellaneous) Provisions Act, 1933. section 2 (2) (8) proviso 1.Indeed even when the justices have- refused to coiiimit on any particularcharge a man who has been committed on other charges, the prosecutionmay include in the indictment a count based on that charge subject tothe power of the presiding Judge, upon objection, to rule that there wasno evidence to support the allegations. R. d. -Marry1.- •-
In Ceylon, however, the powers of the prosecution in this respecthave become narrower since Chapter 16 of the Criminal Procedure
1 (1945) K. n. 153.
Code was subjected to the sweeping amendments contained in OrdinanceKo. .13 of 191S… Apart from ah exception to which I shall shortly refer,an accused person can in no circumstances bo committed for trial ortried upon indictment except upon the basis of the charges which hadboon read out to him under section 156 and to which ho was later calledupon to answer in terms of Section 159 and 160. In other words, thepower of a Magistrate to commit under section 163 and the powers ofthe Attorney-General to direct a committal under section 391 are bothdetermined by the scope of the particular charges which formed thesubject matter of the Magisterial inquiry ; the only exception recognisedby the Code is in respect of offences of which a man may lawfully boconvicted upon a trial of the charges actually inquired into. All thislias been very clearly explained in the judgment of Gunasekara J. inVaithilingam r. The Queen *.
The Cej’lon procedure is admittedly far from satisfactory in this respect,"because it involves an unprofitable expenditure of time in framingamended charges followed by the commencement of what are virtuallyfresh proceedings under Chapter 1G. But this is still the law, and recom-mendations for simplifying the procedure have not yet received theattention of Parliament.
On the other hand, the Attorney-General in Ceylon is vested with•certain extra-ordinary powers (unknown in the English system) whenevera Magistrate, at the conclusion of the inquiry under Chapter 16, liasdischarged an accused person in terms of section 162 (1) of the Code.Section 391 then authorises the Attorney-General, if lie considers thatthe accused should not have been discharged, to over-ride the Magistrate’sdiscretion by directing a committal, and the Magistrate in that eventhas no option but “ to re-open the inquiry ” and comply with suchinstructions as to (the Attorney-General) shall appear requisite But-tho Attorney-General’s powers arc themselves controlled by the require-ments of Chapter 16. Section 391 must clearly bo read in the contextof section 162, so that a direction to commit must necessarily be confinedto t: the particular charges under inquiry ” in respect of which tho Magis-trate had discharged an accused person. In other words, the Attorney-General can only direct a Magistrate to enter an order of committal oncharges in respect of which the Magistrate himself was previously vestedwith power to commit.
If the Attorney-General takes the view that an accused person oughtto be committed for an offence other than that for which he had beenspecifically charged (or other than an offence for which he might lawfullyhave been convicted if properly committed) a different proceduro mustbe resorted to. Ho is authorised to instruct the Magistrate under section390 (2) to reopen the proceedings by formulating an amended charge, anilthereafter to take all the steps prescribed by Chapter 1G. It is certainlynot permissible to give a difeetion that the accused person should bocommitted for trial.upon an amended charge after'complj'ing only withthe requirements of sections 159, 160 and 1G1—because, if that were
done, the accused would be deprived of a fundamental right which theLegislature has (under the present Code) conferred on him. Moreover,where such directions have been given under section 390 (2), it is for theMagistrate alone to decide in the first instance whether or not a committal on-the amended cha'ge would be justified.' The residual powers of theAttorney-General under section 391 only come into operation at a laterstage—that is to say, if ho considers that the Magistrate has wronglyexercised his discretion in favour of the accused on this vital issue.
Let us consider, in the light of these principles, -the stops which were-taken in the present case after the Magistrate had lawfully dischargedthe prisoners on I2th August, 1954. ■ Tho original directions issued tothe Magistrate on 2oth November, 19;54, in terms of sections 391 and 393of the Code wore (for what they were worth) infra vires the Solicitor-General because they ordered a committal, after certain formalities hadbeen complied with, on the “ particular charges ” which had in factbeen “ under inquiry ”. But these instructions were subsequentlycancelled by implication, if not expressly, and are not- relied on as havingany bearing on the objections now under consideration..
The second set of instructions issued in the name of the Attorney-General on 2nd March, 1955, call for no discussion because they too werecancelled before they were obeyed. The order of committal made incompliance with the final instructions issued on 12th March, 1955, was-contrary to law for the following reasons :
the instructions went far beyond the particular powers vested in
•the Attorney-General under section 3S9 ;
even if they had been given under section 391, they would have-
been equally ultra vires because they directed a committalon charges substantially different from those which formed thesubject matter of the inquiry under Chapter 16 :
if, again, the intention had been merely to instruct the Magistrate
in terms of section 390 (2) to hold a fresh inquiry upon thecharges as filially amended, the direction to commit tho prisonersaulomaticallij upon those charges would also, have been ultra,vires because they would in that event have purported to relievothe Magistrate of his duty to decide judicially whether or notan order of committal was justified by the evidence.
The offences punishable under sections 140, 144 and 146 of the PenalCode on which the Magistrate committed the prisoners for trial inobedience to the Attorney-General’s final instructions were clearlydifferent from those which were' originally “ under inquiry ”. An allega-tion that a man was a member of an unlawful assembly of 5 consistingoY himself and foui; named persons is not tiA same as an allegation thathe was a member of an unlawful assembly of 5 consisting of himself,three named persons and “a person unknown to the prosecution Justas it requires at least two persons to form a criminal conspiracy punishableunder section 113a of the Penal Code, tho offence of being a member of
fiG
an unlawful assembly cannot bo committed except in association with
others. The acquittal of one of two accused persons on a conspiracy
charge therefore necessarily results in the acquittal of tho other unlessthe indictment or charge specifically alleged (and it is proved) that some-one else, known or unknown, had also participated in tho crime. TheKing c. Dharmasenal. Tho same principle applies, mutatis mutandis,to an indictment or charge alleging participation in an unlawfulassembly..
In this case, the scope of the inquiry under Chapter 16 was confinedto the issue whether tho prisoners had joined an unlawful assembly of
persons in association with Murugesu Sinnadurai (tho original 2ndaccused) and Swaminathan Thiagarajah (the original 4th accused); butthere was no inquiry at any time into tho later allegation that “ a personunknown to tho prosecution ” had been a member of any such assembly.Accordingly, counts 1, 2 and 3 in the indictment cannot bo allowed tostand.
The 4tli count in tho indictment now alleges that the 1st prisoner
and a jserson unknown■ to the prosecution ” committed tho murder ofSambandar, whereas the relevant charge “ under inquiry ” under Chapter16 alleged that he and Muntgesn Sinnadurai (a named person) hadcommitted the offence. Mr. Kanakaratne invited me during tho argumentto euro any objectionable features in this count by pox-mitting the woids“ and a person unknown to the prosecution ” to bo deleted. I declinedto do so. It is xxo doubt correct to say that, if two persons are properlycommittcd for trial for an offence punishablo under section 296 of thoPenal Code, one of them may be convicted even though the other isacquitted. But in tho present case tho 1st prisoner has in his favourthe earlier order of discharge validly entered by tho Magistrate on 12thAugust, 1954, and that order has not been validly superseded.
As far as can be gathered from the record of the inquiry hold by tlieMagistrate under Chapter 16, and also from the subsequent directionsissued by tho Attorney-General’s department, the prosecution hadconsidered it ossential at evorv stage to call in aid the provisions of section32 of the Penal Code in order to establish that cither the 1st prisoner oraguilty associate had killed Mr. Sambandar in furtherance of tho com nonintention of both. There is certainly no indication that tho Law Officersof the Ci’own had specially addressed their minds to the question of pre-ferring against the 1st prisoner a charge of murder based solelyon his individual acts. In theso circumstances, the order of dischargeentered by the Magistrate on 12th August, 1954, stands in the way ofan indictment for murder against tho 1st prisoner alone until it is supple-mented by an overriding decision unequivocally made in the exercisoof tho extra-oi'clinary powers vested in the Attorney-General uudersection 391 of tho Code.■'
Preliminary objection upheld.Indictment quashed.
* (1050) 52 -Y. I.. It. ISI.