089-NLR-NLR-V-18-THE-KING-v.-SUPPAR-et-al.pdf
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IMS.
[Full Bench.]
Present: Wood Renton C. J. and Pereira and Ennis JJ.
THE KING v. 8UPPAR et al.
56—61 D. C. (Crim.) Jaffna, '2,611.
Unlawfulassembly—Commonobject—VoluntarilycausingTturt—" Other
offence "—Penal Code, s. 188.
The expression 11 other offence ” in section 138, sub-section (3),of the Ceylon Penal Code does not mean an offence ejusdem generiswith those expressly mentioned in the snb*section.
An intention voluntarily to cause hurt can constitute the commonobject of an unlawful assembly. King v. Gantpiah 1 over-ruled..
T
HE facts appear sufficiently from the judgment. The case wasreserved for argument before a Full Bench by Pereira J.
A. St. V. J aye war dene (with him Arulanandam), for accused,appellants.—The common object set out in the indictment is causing
1 (1914) 17 N. L. R. 88$.
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hurt. This Is insufficient to support a conviction under section 188.1915*
The offence of causing hurt is not one ejusdem generis with those^
mentioned in the section. See King v. Carupiah1; also Tambydh's SupparPenal Code 847 ; TambyaWs Reports, vol. VL, p. 78.
Section 138 comes under chapter VUI, which deals with offencesagainst the public tranquillity. If the words ** other offence " isgiven an extensive inteipretation and made to apply to all offencesas defined in section 88 of the Penal Code, absurd results willfollow. Is forging a document secretly and within dosed doors,if done by more than four persons, to come within the purview ofsection 188? Clearly not. Causing hurt is not an offence ejusdemgeneris with mischief and criminal trespass. The classification inthe Code makes it clear. One is an offence against property, theother against person.
S. Obeyesekere, C.C., for the Crown.—Queen v. Nandua 3 is anauthority in favour of the prosecution. It has been the invariablepractice to indude crimes of violence, at least as constituting .thecommon object, within the purview of section 188. Counsel reliedon King v. Peris. 3 Even if “ other offence " is to be given therestricted interpretation, causing hurt is an offence ejusdem generiswith criminal trespass, inasmuch as causing hurt is a trespass on one'spersonal rights of safety. It has been held in India that abductionand assault could form the common objects of an unlawful assembly.See 18 W. R. 33, 3 CaL 584, 82 Bal. 876.
May 18, 1915. Pekbisa J.—
In this case .two questions have arisen for decision: (1) Whetherin the clause, M To commit ** any mischief, or criminal trespass or*' other offence, ” occurring in the definition of “ unlawful assembly *’in section 138 of the Penal Code, the expression “ or other offence ”is to be taken as. referring to an offence ejusdem generis with mischiefand criminal trespass; and (2) whether “ voluntarily causing hurt ”is an offence ejusdem generis with mischief and criminal trespass?On both these questions I regret I am obliged to differ from theview .taken by the rest of the Court. It has been argued that thedefinition of the word " offence ” in section 38 of the Code is con-clusive on the first question; that is to say, that, inasmuch as theword “ offence ” is defined in a particular way in section 38, theflood gate of offences embraced by that definition is opened themoment the word is used in another section of the Code, and noexpression in the latter section itself, or rule of law calculated togive the word a restrictive meaning, can stem the tide. I cannotfor one moment accede to this proposition. True, the word cannothe taken as meaning anything other than the meaning assigned to
i (1914) 17 N. L. R. 383.3 (1895) 1 N. L. R. 317.
3 am) is .v. l. r. m26
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1915. jjfc by the definition, but what has the definition to do with tilePHRBnt&J. question &b to what among the numerous offences embodied by it
— are indicated by the word used in any particular section of theThe King, n , .J
Suppar Penal Code?
The simple question is whether the legal principle of ejusdemgeneris applies to the word (cited above) used in section 188. Inmy opinion there can be no doubt as to the application, and, so faras I can see, all the text writers agree that in strict law the principleapplies; but for some reason, of which I am not aware, they areinclined to think that the clause was intended to include all offences.Dr. Gour in his commentary (vol. 1, p. 568) says : “It (that is,the clause corresponding to the above in the Indian Code) saysthat an assembly is unlawful if its common object is to commitany mischief or criminal trespass or ‘ other offence. 1 Now, strictlyspeaking, the other offence ‘must be ejusdem generis, otherwisethe preceding enumeration -wasunnecessary. If theclause then
means .to commit anyoffence,why should it havespecified,of
all, the two offences qf mischief and criminal trespass?
However, the clause is intended to include all offences, bothagainst person and property, and not only mischief, criminal .trespass,and ejusdem generis. ”This last proposition is notsupportedby
any judicial decision ordictum,and it can only belooked atas
the pious opinion of a learned author.
If the word “ offence M in the clause cited above is to be regardedas meaning (according to the definition in section 38) any offenceunder the Code or any other law, provided that, in the case of thelatter, it is punishable with not less than six months’ imprisonment,the result would be that if five or more persons get together in aquiet room to commit a forgery they would be guilty of unlawfulassembly, and thus qf an offence under chapter VIII of the PenalCode, that is to say, an offence against '* the public tranquillity. ”
As regards the second question, it is manifest that voluntarilycausing hurt is not an offence ejusdem generis with mischief andcriminal trespass. The former falls into the category of offencesaffecting the human body, while the latter fall into the category xotoffences against property—two distinct classes according .to theclassification in the Code.. It has been said that if the view setforth above is correct,, .the result would be that while an assemblyof five- or more persons with the common object of killing a dogwould be an unlawful assembly. 6uch au assembly with the commonobject of killing a human being or committing robbery would notbe an unlawful assembly. Well, all that I can say is thfct theLegislature in its wisdom has so ordained. Apparently it wasthought that in the latter case the weapon of prosecution, as foran unlawful assembly, which, after all. is punishable with onlv six*months* imprisonment, need not be used. There are more formidableweapons provided by law for such cases. Dr; Gour observes (vol. I.,
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p. 568) that in the original draft of the Indian Code the words usedwere “ to eoznznit any assault (of course, not the same as causinghurt), mischief, or criminal trespass, or wrongfully to restrain anyperson, or to put any person in fear of hurt, or of assault, orwantonly to insult or annoy any person.’* Similarly, in clauses
2, 4, 5, and 6 of section 138 of our Code serious offences againstthe human body are not included. Apparently they were intendedto be dealt with by- other means. If the absence of any referenceto voluntarily causing hurt and other offences affecting the humanbody in clause 3 of section 138 of the Penal Code is ah inadvertentomission, it is in the province of the Legislature to supply theremedy. As once observed by Jessel M.R., “ We must administerthe law as we find it. ” (see Bunting v. Sargent1). I answer the firstquestion in the affirmative and the second in the negative.
Wood Renton C.J.—
These appeals have been referred by my brother Pereira to aBench of three Judges solely for the determination of a point oflaw, namely, whether under section 138 of the Penal Code anintention voluntarily to cause hurt can constitute the commonobject of an unlawful assembly. There have, been conflicting singleJudge decisions on this question. In Muriweera v. Danta 2 Withers
J.answered it with some hesitation in the negative. In Queen v.Nandua 3 he disapproved of his own ruling in Muriweera v. Danta. 3In The King v. Garupiah* my brother Pereira followed the case ofMuriweera v. Danta.2 In 174-175—D. C. (Crim.) Colombo, 384,® 1dissented from the view expressed in The King v. Campiah. 4
We have now had the advantage, of full and able argument on thewhole subject at the Bar. I adhere to the decision in 174-175—?P. C. (Crim.) Colombo, 384.® I will consider the question first asa matter of interpretation. Section 6 of the Penal Code providesthat every ” expression which is explained in any part of thisCode is used in every part of this Code in conformity with theexplanation.”
Tfye question under consideration depends on whether the words“ other offence ” in the third clause of section 138 are to be construedgenerally, or, in accordance with the rule as to ejusdem generis, shouldbe restricted to offences of the same character as ' * mischief orcriminal trespass,” which precede them. Now, the term ” offence ”is defined in section 38 (a) aS denoting a thing made punishable bythe Code “ except in the chapter and sections mentioned in clauses(6) and (c) of this section. ” In the sections enumerated in clause(b), tiie word ” offence ” is to denote ” a .thing punishable in Ceylontinder this Code or under any law other than this Code.” Section
i (1879) L. B. 33 0. D. 335.. » (1895) 1 N. L. R. 317.
* (1895) 6 Tam. 78.* (1914) 17 N. h. B. 383.
s 8. C. Mins., Not. 19, 1914.
1915*
Pebexra J.
The King «•Snppar
t*i5.
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188, inter ofio, Is comprised in clause (c), and the effect of that
Wood clause is that in section 138 the word “ offence ” “ has the sameBarow C.J* nieaning when flic thing punishable under any law other than thisftos King v. Code is punishable under such law with imprisonment for a term ofStupor sJx months or upwards, whether with or without fine/’
The words “ the same meaning ” cannot be explained by areference to clause (a). We have to seek their interpretation inclause (5), and they appear to me necessary to involve the con-clusion that in section 138 the term “ offence ” denotes a thingpunishable either under the Code or under any other law withimprisonment for six months or more, whether with or without afine. If that be the correct construction of section 138 of the PenalCode, the term ” offencemust, by virtue of section 6, have thesame meaning in section 138. It will be noted that neither insection 6 nor in section 38 is there any clause enabling the statutoryinterpretation to be controlled by the context.
It is argued, however, that even if this interpretation be the right•one, tire meaning of the term ” offence ” in section 138 should beheld to be limited by the heading to that chapter to 14 offencesagainst the public tranquillity. ” Assault and kindred crimes areclearly, offences against the public tranquillity, and, strictly speaking,there is no need for us to consider the effect of the heading in questionany further. But, as the point has been fully argued, it might be•desirable to refer to it. Headings in statutes belong to two classes.Sometimes they can be read grammatically into the group of sectionsto which they relate. In other cases .they have no direct connectionwith the language of such sections (see Union Steamship Companyof New Zealand J). Headings of the first class constitute a sort ofpreamble to the sections immediately following them (EasternConnives Railway v. Marriage2). Headings of the latter class aregenerally regarded ns having been inserted for the purpose of con-venience of reference, niid not as being intended to control the inter-pretation of the subsequent clauses, although the fact of a clause beingfound in a certain group may, in some cases, throw light upon itsmeaning (Union Steamship Company of New Zealand, 1 and compareInglis v. Robertson, 9 Queen v. Tirdkadu, 4 Queen v. Payne 5). Theheading to the chapter Which includes section 138 of the PenalCode belongs to the second of these .two clauses, and in view of theunqualified language of sections 6 and 38, I am disposed to think“that it cannot be held to limit the interpretation of the term n offence”in the third clause of the section last mentioned. There is, however,another view, for which something may be said. It may well be-that the commission of any offence, as defined in section 38, by aconcourse of five persons or more, is, in strict law, an offence against
(1884) 9 A. C. 306.3 (1898) A. C. 699-830.
(1861) 9 H. L. C. 32. 41-.* (1890) L L. R. U Mud. 126.
– (1866) L. J?. 1 <7. C. R. 27.( 327 )
the public tranquillity, although it might well be expedient thatsome of the offences that fall within section 38 should, when socommitted, be prosecuted under section 138 of the Penal Code.But to return to the question now immediately before us, T thinkthat the rule of ejusdem generis is excluded, not only by the consider-ations which I have already endeavoured to set forth, but by thefact that it is not possible to find any group of offences ejusdemgeneris with mischief and criminal *trespass that will furnish »satisfactory explanation of the words “ other offence ” in the thirdclause of section 138. It may be remarked, in passing, that theoffence of assault is certainly not ejusdem generis with mischief andcriminal trespass, and that, therefore, the point referred for ourdecision cannot be disposed of on that basis. So far as that pointis concerned, the construction which I have here put on section 138of the Penal Code is in accordance with the views of all the com-mentators on the corresponding section (section 141) of the IndianPenal Code whose works I have had the opportunity of consulting(see Gour’s Penal Law of India, vol. I., p. -5387 and Ratanlal amiDhirajlal’s Law of Crimes 171), with' the inveterate practice ofthe Courts in India, where such offences as abduction (see Queen v.Golam Arfin *) and assault (see Queen Empress o. Bajcoomar Singh, sBobir v. Queen Empress 3) have always been regarded as possiblecommon objects of an. unlawful assembly, and, so for as my ownten years’ experience in this Colony extends, of the Courts in Ceylonako, with the law of England, according to which the offence ofunlawful assembly is committed by a concourse of three or morepersons with the intention of committing any crime by open forceor violence, and with reason itself. It is scarcely credible that theLegislature could have intended to penalize the act of a number ofpersons whose common object is to commit mischief by killing a cowr. and to exempt from the consequences of unlawful assembly tFe con-duct of the same persons if they waylaid a man on the highway withthe intention of murdering him or of causing him grievous hurt.
I would answer .the question in the affirmative, and would remitthe case for adjudication on the merits.
Ennis -J.—
The accused-appellants in this case have been charged and con-victed of being members of an unlawful assembly, the commonobject of which was to commit the offence of voluntarily causing:hurt. The point for determination on the appeal is whether this-is an offence under section 138 of the Penal Code, the material,part of which runs: “ An assembly of five or more persons isdesignated an ‘unlawful assembly ’ if the common object of the
1 (1870) 13 W. R. 33.„* (1878) I. L. R. 3 Cal. 584, 585 and 386.
= (1894) I. L. R. 23 Cal. 276, 284 and 285.
1918-
Wood
Renton CJT.
The King p.Suppar
: Ennis J.
The King v.Suppar
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persons composing that assembly is(Third) “ To commit
any mischief or criminal trespass or oilier offence.*’
The word “ offence ” in this section is defined in section 38, whichruns:—
" (a) Except in the chapter and sections mentioned in clauses(b) and (c) of this section, the word * offence * denotes a thingmade punishable by this Code.
“ (b) In chapter IV and in the following sections, namely,sections 60, 61, 62, 68, 67, 100, 101, 102, 108, 105, 107, 108,109,110,111,112, 113, 184, 191, 192, 200, 208,210, 211, 216,
217,218,219,220, 318, 319, 320, 321, 822, 388,839, 377, 378,
and431,theword ‘ offence * denotes a thingpunishable in
Ceylon under this Code, or under any law other than this Code.
“ (c) And in sections 138, 174, 175, 198, 199, 209, 213, and 427,the word 1 offence * has the same meaning when the thingpunishable under any law other than this Code is punishableunder such law with imprisonment for a term of six months orupwards, whether with or without fine.”
The words “ have the same meaning M in sub-section (c), in myopinion, refer to the definition at .the end of sub-section (b), and,substituting this for the words “ has the same meaning,” gives thefollowing definition: —
“ In section 138the word 1 offence * (denotes a thing
punishable in Ceylon under .this Code, or under any law otherthan this Code) when the thing punishable under any law otherthan this Code is punishable with imprisonment for a term ofsix months, whether with or without fine.”
It was argued for' the appellants that the general words followingthe specific words *' to commit mischief or criminal trespass ” mustbe construed ejmdent generis, and the case of The King v, Garitpiak 1was cited in support. I find a difficulty in applying this rule, in thatI cannot call to mind any offence under .the Code or any other lawwhich can be saij to be ejusdem generis with mischief and* criminaltrespass. Moreover, in Maxwell on the Interpretation of StatuteSt4th edition., p. 507, I find the following passage relating to this ruleof construction: —
/
” Of course, the restricted meaning which primarily attaches tothe general word, in such circumstances, is rejected when thereare adequate grounds to show that it is not used in the limitedorder of ideas to which its predecessors belong. If it can beseen from a wider inspection of the scope of the legislation thatthe general words, notwithstanding that they follow particularwords, are nevertheless to be construed generally, effect must begiven to the intention of the Legislature as gathered from thelarger survey.”
' (1914) 17 N. L. R. 383.
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The definition in section 88 makes the word " offence *' in section tfn$m188 very little less general than if it stood undefined, and for the
respondent it was argued that the express definition showed that
the Legislature intended the general words to be construed generally. TAe King
Against this it was argued that if this were so, there was no needto specify mischief and criminal trespass at all, as they are offencestinder the Code, and for the same reason it would render the words“ by mean6 of criminal force M in the fourth and fifth sub-paragraphsof section 138 redundant. It seems to me tliat the intention ofthe Legislature and the scope of the legislation must be sought, ifnil the words in section 138 are to receive full weight, not only inthe definition, but elsewhere in the Code. Now chapter VIII, inwhich section 188 appears, relates to “ offences against the publictranquillity.*' If this be taken as the scope of the legislation, it ispossible to assign n reason for the specific mention of mischief andcriminal force and to place a limit to the otherwise very extensiveoperation of section 138.
Mischief and criminal trespass, in so far as they provide for theprotection of private rights, do not necessarily affect public tran-quillity, but the express mention of these specific offences in section138 shows that the Legislature intended to regard the commissionof these offences by a number of persons acting' in concert as a matteraffecting public tranquillity. The use of the general words in thesection would be limited by the scope, and it would be a question ineach particular case whether the common object of the assemblywas to commit an offence affecting the public tranquillity. In thepresent case I entertain no doubt that the voluntary causing of hm*would come within the scope and terms of the section.
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