040-NLR-NLR-V-14-VELAIDEN-v.-ZOYSA-et-al.pdf
( 140 )
A7ot?. 8. 1910
[In Revision.]
Present: Middleton J.
VELA1DEN v. ZOYSA et at.
P. C. Colombo, 24,284.
Binding oner to keep the peace—Members of opposing factions cannot bebovnd over in the same proceeding—Criminal Procedure Code,,v.>. Sly 1S-J, and -126,
A breach of the rule of law that two accused members of opposingfactions in a riot, or two persons accused of giving false evidencein the same proceeding, must be indicted and tried separately isnot a mere irregularity which can be cured by section 425 of theCriminal Procedure Code. It is an illegality which invalidates theproceedings.
Members of two opposing factions cannot be bound over to keepthe peace under section 81 of the Criminal Procedure Codo in tliosame proceeding.
*jpHE facts appear sufficiently from the judgment.
H. A. Jayewardenet for the petitioners.
1 {ISSo) 5 S. c. C. 126; Wendt 186.
Cur. adv. vult.
( 141 )
November 8, 1910. Middleton J.—
In this case the first accused applied in revision to set aside anorder made under section 81 of the Criminal Procedure Code bindinghim over to keep the peace for six months.x
The ground relied upon is that he was charged; together withpersons of an opposing party, with whom he was at enmity, in oneproceeding, and the cases of Subramania Ayyar (Appellant) v. TheKing Emperor (Respondent)1 and Kamal Narain Chowdhury andanother v. The King Emperorwere cited in support.
In the former case the Privy Council held that disobedience toexpress provisions as to a mode of trial could not be regarded as amere irregularity, and that such a phrase as irregularity is notappropriate to the illegality of trying an accused person for manydifferent offences at the same time, and those offences being spreadover a larger period than by law could have been joined in the sameindictment. The foundation of the decision is the rule of law thatonly three offences of the same kind committed within the space ofone year may be charged together in one indictment to be found insection 234 in the Indian Criminal Procedure Code and section 179of the Ceylon Criminal Procedure Code.
By analogy a breach of the rule of law derived from the examples(d) and (e) to section 184 of the Criminal Procedure Code, that twoaccused members of opposing factions in a riot, or two personsaccused of giving false evidence in the same proceeding, must beindicted and tried separately, is argued not to be a mere irregularity,and not to be cured under section 425 of the Criminal ProcedureCode.
Proceedings of the kind now in question have, under section 87 (2),to be conducted like summary trials, and the examples I have citedwould apply. It is difficult I think to say, upon the ruling of thePrivy Council, that what has occurred here is a mere irregularitycurable under section 425 of the Criminal Procedure Code. Theinconvenience, if not the impracticability, of it is evident inconnection with the examination and cross-examination of theirrespective witnesses if tried together.,
I must, therefore, quash the order made by the learned PoliceMagistrate, but in consideration of what he states in his letter to theRegistrar and of the murder referred to in the case, with leave tothe Police to renew the proceedings against the first accused toobtain an order under section 81, if they deem it advisable in theinterests of peace and order to do so.
Proceedings quashed.
Nov. 8, 1910
Velaidm
v.
Zoysa.
15-
' (1902) 1. L. B. 20, rfad. 61,
“ S C,L. J. 231.