015-NLR-NLR-V-08-KING-v.-DORASAMY.pdf
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KING v. DOBASAMY.
D. C., Kandy (Criminal), 1,635.
Criminal Procedure Code, s. 179 (1)—Accusation of offences committed duringa period exceeding twelve months—Joinder of three charges in oneindictment.
Where a person has been brought before the Police Court and accusedof offences of the same kind which from the first to the last were allegedto have been committed during a period of about four years,—
* Held, that under section 179, sub-section 1, of the Criminal ProcedureCode, such person could be indicted and tried for three of the said offencescommitted within a period of twelve months.
T
HE accused in this case was indicated before the DistrictCourt of Kandy on an indictment which charged him
with three offences of the same kind, namely, criminal breachof trust, punishable under section 391 of the Penal Code. Theoffences were alleged to have been committed on the 24th August,24th December, and 28th December, 1903. In the Court belowthe. prosecuting counsel, in reply to a question by the counsel forthe defence, stated that the defalcations commenced in 1900, andthe first witness for the prosecution stated as follows:“I told
the Magistrate I had discovered defalcations to- the extent ofBs. 20,000 or Bs. 25,000. That I said the first day I went beforehim. My complaint to him was that accused misappropriatedBs. 20,000. That amount comprised defalcations covering a periodof about four years. ” Objection was taken for the defence that,in the face of the facts admitted by counsel and stated by thewitness, it was illegal to try the accused at one and the same trialfor the three offences of which he was charged in the indictment.
The District Judge made the following order:“ I over-rule the
objection taken to the indictment. As I read section 179 (1) ofthe Criminal Procedure Code it modifies section 178, whichrequires there should be a separate trial for every distinct offence,by allowing three charges of three distinct offences of the samekind and committed within, one year of each bther to be tried atthe same time. It merely restricts the number of ofEences at onetrial. ’’
The accused was ultimately convicted.*
On appeal the consideration – of the above- objection was reservedfor a Court of three Judges. The case was argued on 20thJanuary, 1905, before Layard, C.J., Moncreiff, J., and Grenier,
A.J.
1905.
January Z0.
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Walter Pereira, K, C. (with him Savuniranay again), lorJanmary to. accused, appellant.—The rule laid down by the Criminal ProcedureCode is that for every distinct offence of which any person is accusedthere shall be a separate charge, and every such charge shall betried separately. There are a few exceptions, and the exceptionwith which they were then concerned was that provided1 for bysection 179, sub-section 1. The words have to be carefully con-sidered to get at the meaning of the provision. The sub-sectionran thus:“ When a person is accused of more offences than one of
the same kind committed within the space of twelve months 'fromthe first to the last of such offences, he may be charged with andtried at one trial for any number of them not exceeding three, ,andin trials before the Supreme Court or a District Court suchcharges may be included in one and the same indictment. ” Thissection, it must be remembered, was taken over from the oldCriminal Procedure Code, under which a charge had to be framed ‘by the Police Court embodying the offence of which the accusedperson was accused by the prosecutor. The word “ accused ” isused in the section in contradistinction to the word ‘ ‘ charged ’ ’.Clearly, it is used to indicate the accusation under section 148, andit is only when the offences covered by that accusation fall (fromthe “ first to the last ”) within a period of twelve months that three jmay be chosen out of them, and the accused charged therewithand tried by the Police Court or before the District Court or SupremeCourt at one trial. In other words, there must be a certain cate-gory out of which the three offences have to be drawn, namely,offences covered by an accusation, and which from the first to thelast fall within a period of twelve months. There is no suchcategory in the present case. Here, the offences of which theaccused person was originally accused extended over a period oftwelve months, and the inclusion of three offences in one indict-ment in such a case was not justified by section 179, sub-section 1.The reason for the law may possibly be that in the case of allegedoffences evolved out of transactions covering a long series of yearsthe accused may be embarrassed by having to defend himselfagainst three charges at one trial, inasmuch as the defence in thecase of each charge may involve the consideration of events during •so many years. If, as contended by the other side, the Legislatureintended that any three offences of the same kind might be in-cluded in one indictment, provided they were alleged to havebeen committed within a period of twelve months, the Legislaturewould have expressed itself in plain language to that effect.The wording of section 5 of 24 and 25 Viet. ch. 96 may be com-pared:“It shall be lawful to insert several counts in the same
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indictment against the same person for any number of distinctacts of stealing not exceeding three which may have been com-mitted by him against the same person within the space of sixmonths from the first to the last of such acts, and to proceedthereon for oil or any of them.The words of the section inquestion of our criminal procedure were quite different, and, itis submitted, conveyed only the meaning contended for. If thiscontention is right, there was no mere • irregularity, but anillegality which, as held by thePrivyCouncil inthecase of
Svbramanian v. King-Emperor (I.L. B.38, Madr.61),vitiated
the conviction.
Domhorst, K.G. (with him Bawa and Van Langenberg), forrespondent.—The High Court of Madras has held that, where anaccused person had been accusedof nine offences,he might be
charged under three indictments,eachincluding threeoffences
committed within the space of twelve months. That is justifiedby the section of our Code under consideration, and all that itreally requires is that the three offences of which the accusedperson is ultimately charged should from the first to last covera period not exceeding twelve months.
20th January, 1905. Layabd, C.J.—
The point which has been reserved for the decision of the FullCourt is—to state it as precisely as I can—whether when a personhas been brought before the Police Court, and, in the course ofthe Police Court proceedings, there appeared to be evidence toshow that the person has committed more offences than one ofthe same kind during a period exceeding twelve months, suchperson can be charged at the instance of the Attorney-Generaland tried in a Superior Court for – three offences admittedlycommitted within the space of twelve months.
In my opinion he can be so indicted by the Attorney-General,in view of the provisions of section 179, sub-section 1. I read thesection as meaning that, when a person is accused of more offencesthan one of the same kind committed within the space of twelvemonths from the first to last of such offences, «he may be indictedby the Attorney-General for any three of such offences, thoughthere may be evidence or material before the Police Magistrate toshow such person has been accused of offences other than thoseappearing in the indictment outside the period of twelve months inwhich the offences on which he is charged in the. indictment hadbeen committed. It was not intended by the Legislature to enactthat no person could be indicted for three offences of a similarAifcd if it appeared in the course of the proceedings in the Court
1905.
January 20.
1905.
January-SO .Layahd.C.J.
below thftt he had at some other period outside the twelve monthscommitted other offenees of a like nature. The language ofsection 179, sub-section 1, is such as to show that the intention ofthe Legislature was to extend the powers of any Court to trypersons for more offences than one of the same land, where suchoffences were committed within the space of twelve months, andto limit the number of the offences to be tried in such a caseto three.
The appeal must be dismissed.
Moncreiff, J.—Agreed.
Grenier, A.J.—Agreed.