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—Present : Jayewardene A.J.
WEERAKOON v. MENDIS.
27—P. C. Colombo, 10,510.
Misjoinder of accused persons—Offence of accosting—Assault on publicofficer in execution of his duty—Criminal Procedure Code, s. 184.
When the first accused accosted a lady passenger, an Inspector ofPolice, who was present, attempted to arrest him, and the accusedran away. A Muhandiram, who was in the company of theInspector, gave chase, and the second accused, the father of the first,who came on the scene assaulted the Muhandiram. The firstaccused was charged with accosting, and the second with assaultinga public officer in the execution of his duty, in the sameproceedings.
Held, that the accused could not be tried together as the offenceswere not committed in the course of the same transaction.
A Muhandiram is not a Police Officer who has the right to arresta person under section 2 of Ordinance No. 7 of 1889.
PPEAL from a conviction by the Police Magistrate of Colombo.The facts appear from the judgment.
J. S. JayewardenCy for appellant.
January 21, 1925. Jayewardene A.J.—
In this case the accused, son and father, have been convictedunder section 4 of Ordinance No. 4 of 1841 and section 344 of theCeylon Penal Code, respectively, and the first accused sentenced topay a fine of Rs. 20 and the second to pay a fine of Rs. 75. The firstaccused has not appealed, but the second accused appeals against hisconviction, and counsel on his behalf has taken two points, In the
. first place it is Objected that the conviction is bad, inasmuch as there
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is a misjoinder of persons accused of different offences not committedin the same transaction. In the second place it is contended that theMuhandiram of Salpiti korale, whom the second accused is said to haveassaulted, was not acting in the execution of any duty as a publicservant at the time of the assault, if it took place. As regards thefirst objection, I think it is entitled to prevail. Under section 184 ofthe Criminal Procedure Code it is only persons who are accused ofjointly committing the same offence or of different offences in thesame transaction who can be tried together in one and the same trial.The first accused is said to have accosted some lady passenger who hadgone down to Mount Lavinia, and the Inspector of Police at MountLavinia seeing the first accused committing this offence attemptedto arrest him, as he was entitled to do under section 2 of OrdinanceNo. 7 of 1889, which amends Ordinance No. 4 of 1841 in certainrespects. The first accused escaped and hid under a culvert. TheMuhandiram of Salpiti korale happened to be in the company of theInspector at the time, and the Inspector, the Muhandiram, andseveral others ran after the first accused for the purpose of arrestinghim. At this stage the second accused, the father of the first accused,appeared on the scene and struck at the Muhandiram with a bigpiece of wood. Now, it cannot be said that this offence of accostingpassenger ladies and the assault on the Muhandiram are offencescommitted in the same transaction. The offence of accosting wascomplete when the accused ran away from the place where the ladypassengers were, and the assault on the Muhandiram by the secondaccused had no connection whatever with the offence of accostingthe lady passengers by the first accused. I do not think that anyauthority is necessary fox so obvious a proposition, but I might saythat the same principle has been accepted by the Courts of India,and I might refer to the judgment in the case of Gobind Koeri v.Emperor1 as an illustration . In that case Gobind Koeri was caughtby some persons placing clods of earth on a railway line. Whilebeing taken away by them, Gobind Koeri was, shortly afterwards,rescued by Hira Mander and Manger Koeri. Gobind Koeri wascharged under section 128 of the Railway Act for placing clodson the line. Hira Mander and Manger Koeri were charged undersection 225 of the Penal Code for rescuing Gobind Koeri from lawfulcustody. All three accused were tried jointly in one trial and wereconvicted. It was held that the offences not having been committedin the same transaction, the persons accused of each of these offencesshould have been tried separately, and that the Court had nojurisdiction to try them in the same case’. The reversal of theconviction was based on ruling of the Privy Council in the wellknown case of Subramania Ayyar v. King Emperorr The principlelaid down in the last mentioned case has been consistently followedby this Court in dealing with objections taken to the joinder of
*(1901) 25 Mad. 61.
1 29 OA 385.
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J A Y£ WAR-DENS A.J.
charges, which involve a breach of the express provisions of theCriminal Procedure Code. In the result I am compelled to upholdthe first objection taken on behalf of the appellant.
As regards the second objection, that the Muhandiram was notacting in the exercise of any duty as a public servant, in my opinionthere is no evidence in the case to show what duty the Muhandiramwas performing at the time the assault took place. He was notentitled to arrest the first accused, because under the Ordinance No. 7of 1889, already referred to, section 2, it is only a Police Officer whohas the right to arrest a person committing an offence under thatOrdinance. The Muhandiram might be a Peace Officer, but he is nota Police Officer. It is not shown that he was acting under the direc-tion of the Police Inspector who was attempting to arrest the firstaccused. In tho absence of any evidence on the point, I think itmust be held that the conviction of the accused under section 344of the Penal Code of assaulting or using force to a public officer inthe exercise of his duty cannot also be sustained.
I would, therefore, allow the appeal of the second accused, asnddirect that he be discharged.