027-NLR-NLR-V-66-W.-E.-DE-ZYLVA-Appellant-and-THE-QUEEN-Respondent.pdf
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T. S. FERNANDO, J.—De Zylva v. The Queen
1963 Present: T. S. Fernando, J., and Abeyesundere, J.W.E. EE ZYLVA, Appellant, and THE QUEEN, Respondent
S. C. 28 of 1962—D. C. (Criminal) Colombo,
N 2087/39676 D
Criminal breach of trust—Iwlictment—UJJect of charge taking in a period in excessof one year—Illegality—Penal Code, a. 391—Criminal Procedure Code,s. 16S (2).
The accusod was clmrgod with having committed criminal breach of trust“ between the 7th day of January 1959 and the 8th day of January 1960
Held, that the charge, by taking in a period in excess of one year, was defectivein that it contravened the provisions of section 168 (2) of the Criminal ProcedureCode. Such a charge is illegal and not merely irregular.
^_PPEAL from a judgment of the District Court, Colombo.
Colvin R. de Silva, with K. Jayasekera and N. M. S. Jayawickrama„for the accused-appellant.
P. Colin-Thome, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
January 24, 1963. T. S. Fernando, J.—
The charge contained in the indictment laid against the appellant was.as follows :
I
“ That between the 7th day of January, 1959 and 8th day of January1960 at Maradana, in the division of Colombo, within the jurisdictionof this Court, you did while being employed in the capacity of a servant,to wit; Store Keeper in C. C. Wakefield & Company Limited, Colombo,commit criminal breach of trust of 178 (forty live gallons) and 18gallons drums of oil valued at Rs. 32,787 92, entrusted to you in yourcapacity as such servant, and that you have thereby committed an,offence punishable under Section 391 of the Penal Code.”
T. S. FERNANDO, J.—De Zylva v. The Queen
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Before the appellant was called upon to plead to this charge in theDistrict Court, counsel for him contended that the charge was defectivein that it had been framed in violation of section 168 (2) of the CriminalProcedure Code. The learned trial judge overruled counsel’s objectionto the validity of the charge on the ground that it is devoid of merit,recorded tlio appellant’s plea of not guilty, proceeded with tho trialand convicted tho appellant.
The same objection based on the illegality of the charge in theindictment has been pressed before us in appeal and it becomes necessaryto examine the provisions of section 168 (2) of the Criminal ProcedureCode. That sub-section removed certain difficulties that confronteda prosecution in a case where there were several misappropriations ofmoney or items of other movable property spread over a period of time,but the meaning of the proviso to the sub-section has always to beremembered. The period in respect of which misappropriations ofmovable property may be so lumped together cannot exceed one year.
The facts of the case have not been examined by us. The objectiontaken relates to the charge, viz. to the charge as framed. Section 168 (2)which permits the joinder of more than one act of misappropriationrelates solely to the framing of the charge. When the proviso to thesub-section enacts that the time included between the first and last ofsuch dates shall not exceed one year, the reference is, no doubt, to theexpression “ dates ” in the main body of that sub-section. That refer-ence is obviously to the dates to be specified in the charge to be framed.In whichever way one calculates a year, tho expression “ between tli67th day of January 1959 and the 8th day of January I960 ” takes ina period in excess of one year. Accordingly, it is difficult to resist theconclusion that the trial proceeded on a charge framed in violation of theprovisions of the Code in respect of the framing of charges. Suoh acharge is illegal and not merely irregular. As was stated by LordHalsbury, L.C., in the case of SubrakmaniaAyyar v. The King-Emperor1,it is not possible “ to regard the disobedience to an express provision asto a mode of trial as a mere irregularity. Such a phrase as irregularityis not appropriate to the illegality of trying an accused person for manydifferent offences at the same time and those offences being spread overa longer period than by law could have been joined together in oneindictment.” No valid trial could have taken place on an illegal charge,and we are therefore compelled to quash the conviction and sentenceand to direct that the appellant be discharged. To prevent avoidableargument in the future, I would say that the quashing by us of theconviction of the appellant in the circumstances I have indicated abovedoes not have the effect of an acquittal on the charge laid in theindictment.
Abeyesundekq, J.—I agree.
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Conviction quashed.
11. L. B. 25 Madras 97.