067-NLR-NLR-V-48-VARGHEES-Petitioner-and-WIJESINGHE-S.-I.-Police-Respondent.pdf
Varghees v. Wijesinghe.
203
1947Present: Dias J.
VARGHEES, Petitioner, and WIJESINGHE (S. I., Police),
Respondent
164—In revision, M. C. Colombo, 26,317
Plea of autrefois convict—Scope of Criminal Procedure Code, s. 330 (4).
The accused was charged, under section 315 of the Penal Code, withcausing hurt, and was convicted and sentenced. Thereafter, after hehad served his sentence, a fresh plaint was filed on the self-same factscharging him, under section 300 of the Penal Code, with attempt to murder.
Held, that the plea of autrefois convict was available to the accusedand that the case fell under section 330 (1), and not under section 330 (4),of the Criminal Procedure Code.
A
PPLICATION, in revision, to quash certain proceedings in theMagistrate’s Court, Colombo.
Mahesa Ratnam, tor the accused, petitioner.
J. G. T. Weeraratne, C.C., for the Attorney-General.
Cur. adv. vult.
206
DIAS J.—Varghees v. Wijesinghe.
May 16, 1947. Dias J.—
The material facts are as follows : —
On August 5, 1946, the police produced the petitioner before theMagistrate alleging that he had stabbed one D. A. Pedris with a krifeand asked for a remand pending the report of the Judicial Medical Officerin regard to the injuries. The evidence shows that Dr. Mendis operatedon the injured man on August 3, 1946, when it was discovered that he hadsustained an incised wound on the neck going through the floor of themouth and cutting the tongue. It was a very serious injury because 'hedoctor stated that had not the bleeding been arrested, it is possible thatthe injured man might have died. Therefore before the plaint was filed theauthorities knew or should have known that the injury endangered lifeand was at least an offence under section 317 of the" Penal Code and notsummarily triable by a Magistrate.
The Police filed a plaint in M. C. Colombo, case No. 19,263, against thepetitioner on August 8, 1946, charging the petitioner with causing simplehurt (section 315). The petitioner on being charged pleaded guilty andwas remanded for identification and sentence.
Counsel appearing with the Police then moved that the sentence bestayed until the doctor could be examined. On September 2, 1946,the doctor gave evidence and the petitioner was sentenced to undergorigorous imprisonment for a term of six months and to pay a fine ofRs. 100. I was informed that this sentence the petitioner has servedand that the fine has been paid.
No application was made by the prosecutor to the Supreme Courtto revise the proceedings in case No. 19,263, on the ground that theevidence disclosed a graver offence than one under section 315.
Thereafter in M. C. Colombo, case No. 26,317, the police on March 17,1947, filed a fresh plaint on the self-same facts charging the petitionerwith attempting to murder D. A. Pedris—section 300 of the Penal Code.When the petitioner appeared he raised the plea of autrefois convict. TheMagistrate rejected that plea on the ground that under section 330 (4) ofthe Criminal Procedure Code such a plea was not available to the petitioner.It is from that order that the present application is made.
Section 330 of the Criminal Procedure Code is identical with theprovisions of sections 403 of the Indian Criminal Procedure Code, exceptthat certain illustrations appended to the Indian enactment have beenomitted from the Ceylon enactment.
Section 330 (1) lays down the general rule—Nemo debet bis pro eademculpa puniri. Therefore, a person who has once been tried by a Court ofcompetent jurisdiction for an offence and convicted or acquitted of suchoffence is not liable to be tried again either (a) for the same offence, or (b)on the same facts (i) for any other offence for which a different chargefrom the one made against him might have been made under section 181,or (ii) for which he might have been convicted under section 182.Illustrations (a), (d) and (e) exemplify this general rule. Then followthree exceptions to the general principle. A person acquitted or con-victed of any offence may be afterwards tried for any “ distinct ” offencefor which a separate charge might have been made against him on the
DIAS J.—Varghees v. Wijestnghe.
207
former trial under section 180 (i). Illustration (b) shows the working oftits exception. A robs his victim and murders him. A is charged formurder and acquitted. He can thereafter be charged for the “ distinct ”offtace of robbery. As one’s experience of the Assize Court shows, theoffence of voluntarily causing hurt with a knife under section 315 of thePetal Code is not a “ distinct offence ” from murder in this sense, asjuries are frequently charged and often find a person charged withmurder guilty of the “ lesser offence ” of voluntarily causing hurt. 1 dono! think that the offence of voluntarily causing hurt is a “ distinct ”offence from the offence of attempted murder, but is included within it asa minor offence. The second exception to the general rule is contained insection 330 (3) and is exemplified by illustrations (c) and (e). A is chargedfor causing grievous hurt to B and is convicted. B thereafter dies inconsequence of the injury caused to him. A can thereafter be chargedfor murder. The reason for this exception is that new consequences hadtranspired or were not known to have happened at the time when A wasconvicted. It follows that if the consequences had happened or wereknown to the Court or should have been known to the Court at the timewhen A was convicted, the case will not fall within the exception, but wouldbe caught up under the general rule, and a plea of autrefois convict wouldprevail—see Illustration (e). In the case under consideration, at the timethis petitioner was convicted by the Magistrate all the consequences ofthe petitioner’s acts had ensued, and the Court and the prosecutor werewell aware of them. It was quite clear that the act of the petitioneramounted, not to the offence of voluntarily causing simple hurt undersection 315 of the Penal Code, but the more serious offence of causinggrievous hurt (section 317) or possibly attempted murder (section 300).If the authorities considered that the Magistrate had no jurisdiction totry and sentence the offender, an application might have been made tothis Court to revise the proceedings by quashing all the proceedings andordering the Magistrate to commence non-summary proceedings againstthe petitioner. This was not done.
It is now sought to bring the case under the provisions of the thirdexception under section 330 (4). This sub-section reads :
“A person acquitted or convicted of any offence constituted by anyacts may, notwithstanding such acquittal or conviction, be subse-quently charged with and tried for any other offence constituted by thesame acts which he m§y have committed, if the Court by which he wasfirst tried was not competent to try the offence with which he is subse-quently charged.”
There are no illustrations exemplifying this exception. The illustra-tions in the Indian Criminal Procedure Code under this sub-section havebeen omitted because they are inappropriate.
Under section 403 of the Indian Criminal Procedure Code there aretwo illustrations numbered (J) and (g) which exemplify the exceptioncreated by sub-section 4. They read as follows : —
(f) A is charged by a Magistrate of the second class with, andconvicted by him of theft of, property from the person of B. A maybe subsequently charged with, and tried for, robbery on the same facts.
48/20
208
DIAS J.—Varghees v. Wijesinghe
(g) A, B and C are charged by a Magistrate of the first class witi,and convicted by himself of, robbing D., A., B and C may afterwardsbe charged with, and tried for, daeoity on the same facts.
Certain Indian cases have been cited to me, but no case has been citedwhere an accused who was convicted was allowed to be retired on :hesame facts for a graver charge. It appears that in India there are Judges with“ first class powers ” and Judges with “ second class powers ” andfrequently the latter assumed jurisdiction and tried offenders who shorldhave been dealt with by the former. In the case of In rre Josier’ a Judgewith second class powers acquitted the accused. He was then rechargedbefore a Judge with first class powers. . It was held that illustrations {j)and (g) to section 403 of the Indian Criminal Procedure Code made itclear that if the second charge is in regard to an offence which the frsttrial Judge could not try, the acquittal or conviction of the accused inregard to a minor offence was no bar to the subsequent charge. InR. v. Hakim Khan5 the Magistrate acquitted the accused of the offenceof forgery. He wa? then committed for trial before the Court of Sessionsfor the forgery of a valuable security. On the plea of autrefois acquitbeing raised, it was held that ‘he illustrations to section 403 of the IndianCode show that a person acquitted or convicted in the circumstances of thecase may be charged with and tried for the more serious offence. InViran Kutti v. Chiyamu1 the Magistrate “ split up ” a charge of daeoityand convicted the accused of rioting, using criminal force and mis-appropriation. The Court of Sessions quashed this conviction holdingthat the offence disclosed was daeoity. The Court of Sessions also heldthat the evidence for the prosecution was incredible. Thereupon thecomplainant filed a fresh plaint charging the accused with daeoity. On theplea of autrefois acquit being raised, it was held that illustration (g) tosection 403 was conclusive, and that the Magistrate could entertain theplaint. In R. v. Singh* the accused was charged under section 498 ofthe Indian Penal Code for taking away a girl from the custody of a certainperson with the intention of committing illicit intercourse with her andwas detaining her in his house. He was acquitted of this charge. Hewas later charged on the same facts under sections 363 and 366 of theIndian Penal Code (local—kidnapping—section 354, and kidnapping tocompel a girl to marry—section 357). The Magistrate who acquitted theprisoner was not competent to try the charge under section 366 of theIndian Penal Code, but he had jurisdiction to try the charge undersection 363. It was held that the plea of autrefois acquit availed theprisoner in regard to the charge under section 363 but that it did notavail him in regard to the charge under section 366. In R. v. Dankarji:the accused was charged with the offence of forgery and was acquitted.He was subsequently charged for uttering a forged document on thesame facts. It was held that the case fell within the provisions of section403 (2) of the Indian Code, and this is the ratio decidendi. It was statedthat the case also fell under the provisions of section 403 (4) as the
acquitting Court had no jurisdiction.
(1911) 18 fr. L. J. 643
(1918) 19 Cr. L. J. 388
(1915) 40 Bom 97
(1884) 1 Mad 551
(1928) 29 Gr. L. J. 760
DIAS J.—v'ar ghees v. Wijesinghe.
209
The only local case which has a bearing on the question raised is R. v.FernandoIn that case the Attorney-General committed the accusedto the District Court for the offence of robbery (section 380, Penal Code).The evidence disclosed that the accused had committed the more seriousoffence of robbery with hurt (section 382) which at that date was punish-able only by the Supreme Court. The prisoner was convicted by theDistrict Judge, and in appeal the question was raised whether theAttorney-General could pick out for trial a lesser offence when theevidence disclosed a greater. It was held that the Attorney-General hadwide powers, and that it was the duty of the District Judge to try theAttorney-General’s indictment. That was the ratio decidendi. Inthe course of his judgment Wendt J. said “ As to the argument thatthe graver offence committed would thus escape punishment altogether,it may be pointed out that under section 330 (4) of the ProcedureCode, the accused would be liable 'to be tried again for the offenceunder section 382 of the Penal Code ”. In my opinion this was an obiterdictum which was not necessary for the decision of the question beforethe Court. Furthermore, the law has since been amended and while itis not illegal to convict an accused under each of two counts charginghim with offences under sections 380 and 382 of the Penal Code, it isimproper to impose consecutive sentences because the offence undersection 380 is included in the offence under section 382—In Revision
C. Criminal Colombo, No. 4,427 *
It is clear that unless the present case can be brought within the ambitof ection 330 (4) of the Criminal Procedure Code, the general rule willapply and the plea of autrefois convict must prevail. Can it be said thatthe case fairly falls within the provisions of section 330 (4) ?
It has been held in a series of cases that a Magistrate may not choosea lesser offence for summary trial when the facts disclose the commissionof a graver offence—Nagamma v. Themis Singho *. If the Magistratecannot do this, a fortiori the prosecutor cannot do so either.
At the date the first plaint was filed and before the petitioner wassentenced, the prosecutor knew or should have known, had he beendiligent, that the medical evidence showed that the offence committedby the petitioner was one graver than the offence with which he was, infact, charged. The prosecutor should have known that the offence11 constituted ” by the acts of the petitioner was not that of voluntarilycausing simple hurt with a knife under section 315 of the Penal Code, butthe graver one of voluntarily causing grievous hurt under section 317 of thePenal Code, and possibly might even amount to the offence of attemptedmurder under section 300 of the Penal Code. Neither of the latter offencesis summarily triable by the Magistrate. Therefore, the prosecutor by hisown conduct misled the Magistrate into assuming a summary jurisdictionwhich, in fact, he dd not possess to deal with this case. The Magistratehas wrongly assumed that summary jurisdiction and convicted the
» (1905) 8 N. L. R. at p. 357.
* Supreme Court Minutes of October 27, 1916.
a (1911) 1 Court of Appeal Cases 56 {Two Judges) and see Baiya v. Nikulas (1906) 1 A. C. R. 49 ,Oaffoor v. Carolis 1 Browne 108, Nadan v. Assari (1916) 2 C. W. R. 104, SamaranayaJca v. Thabrew(1917) 4 C. W. R. 331, Sirinaris v. James (1901) 5 N. L. R. 93, dbc.
210NAGALINGAM A.J.—Dingiri Mahatmaya v. Kiribanda.
petitioner who has served his sentence, when all the time the evidencedearly showed that the offence “constituted” by the petitioner’s actswas a graver non-summary offence. I do not think it now lies in the•mouth of the prosecutor to say that some other offence is constituted bythe acts of the petitioner, and put him in peril for a second time.
1 hold that on the facts of this case, the applicability of section 330 (4) isousted. The case comes under the general principle enunciated in section330 (1), and the plea of autrefois convict is entitled to prevail. I, therefore,quash all the proceedings in M. C., Colombo, case No. 26,317 and directthat the petitioner should be forthwith discharged from these proceedings.
Proceedings quashed.