100-NLR-NLR-V-65-THE-QUEEEN-v.-M.-I.-M.-IBRALEBBE-and-others.pdf
The Queen v. Ibralebbe
)63 Present: H. N. G. Fernando, J., and T. S. Fernando, J.THE QUEEN v. M. I. M. IBRALEBBE and othersS. C. 14-17/1963—D. C. {Grim.) BaUicaloa, 126Indictment—Joinder of chargee based on unlawful assembly with charges based oncommon intention—Validity—Penal Code, se. 32, 140, 146, 296—CriminalProcedure Code, 33. 173, 180, 184, 426—Court of Criminal Appeal Ordinance,8. 5 (1), proviso.
Wh re several accused were indicted on. 13 charges, 7 of which were baaedon the allegation that they were members of an unlawful assembly, and theremainder of which could have resulted in a conviction of two or more of theaccused only if the offences charged had been committed in pursuance of acommon intention—
Meld, that the joinder of the two sets of charges was lawful.
The Queen v. Don Marthdia and others (1903) 66 N, L, S. 19 not followed-
H. N. G. FERNANDO, J.—The Queen v. Ibralebbe
471
A
iAPPEALS from a judgment of the District Court, Batticaloa.
Colvin B. de Silva, with A. R. Mansoor, for the Accused-Appellants,P. Colin Thorne, Crown Counsel, for the Attorney-General.
Cur. adv. wit.
June 7, 1963. H. N. G. Fernando, J.—
Several accused were indicted in this case on 13 charges, 7 of which,were based on the allegation that they were members of an unlawfulassembly, and the remainder of which could have resulted in a convictionof two or more of the accused only if the offences charged had been com-mitted in pursuance of a common intention. Counsel for the accusedargued at the appeal that there had been a misjoinder of these two setsnf charges, relying upon the unreported judgment of two Judges of"this Court (Abeyesundere, J., with Herat, J., agreeing) in the case of, The Queen v. Don Marthelis and others1 (S.C. 5-10 of 1962, S. C. M. of 19thMarch 1963). In a brief judgment, the point was thus decided :—
.. Counts (1) to (5) were based on the allegation of unlawful
assembly and counts (6) to (9) which related to the offences of causingsimple hurt and committing mischief were based on common intention.Section 178 of the Criminal Procedure Code requires every charge to. be tried separately except in the cases mentioned in sections 179,
: 180, 181 and 184 of that Code. Crown Counsel who appeared for theAttorney-General conceded that none of the four last-mentioned sections' applied to the counts in the indictment in this case. The joinder ofthe two sets of charges referred to above is therefore not according to-l law.. Consequently the indictment is invalid …”
, -..'Counsel who argued the present appeal had himself argued the case-rif Don Marthelis, and was therefore able to explain why the. unreportedjudgment does not set – out reasons and contains no examination ofifie provisions of the Criminal Procedure Code which are or may be rele-vant to the question of misjoinder. It appears from Counsel’s statementto. us that the same question was argued in the Court of Criminal Appealwithin recent months, in an appeal in which the appellants were acquitted. by that Court upon the conclusion of arguments, and that it is anti-cipated that the reasons for that acquittal when delivered by the Court,of Criminal Appeal will constitute or include a decision that it is illegalto join together in an indictment two sets of charges depending respec-tively on section 146 and section 32 of the Penal Code. Nevertheless,,until reasons are in fact delivered in that appeal, there is yet no judgment-, of the Court of Criminal Appeal to which 1 can refer for guidance orwhich precludes me from considering the validity of Counsel's arguments,
1 See 65 N. L. E. 19.—Ed.
472
H. N. Gr. FBRNAiODO, J.—Tft Quern, v. fbtalebbe
In view also of the lack of a statement of reasons in the judgment in DonMarthelis* case, I feel free as a member of a bench of two judges tore-consider the point there decided- The fact that mj hzo&tx Fernando,whose familiarity with questions of this nature is well known, has dis-agreed with that decision (vide S. C. M. of 6th may 1963, Khan v.Ariyadasa1 S. C. Nos. 707-11 of 1962) is another reason why the pointappears to me worthy of re-consideration.
In my own attempt to decide whether or not the joinder in the presentcase was legal, I find it convenient to consider the relevant provisionsof law in the same way as would a Crown Counsel engaged in the taskof framing an indictment upon facts which are at first simple and whichbecome complex only in stages.
Suppose that the evidence in non-summary proceedings discloses—
that A shot at X with a gun at close range,
that the gun-shot injury resulted in XJs death, and
that a Jury may reasonably infer a “ murderous intention ”
on the part of A.
On these facts there must undoubtedly be framed a count that Acommitted murder by causing the death of X.
If in addition the evidence also discloses—
that, at the time of the shooting, A had been a member of aiassembly together with five or more other persons of onknown identity having the common object of causing tindeath of X, and'.
(o)that A in all probability fired at X in prosecution of that commoiobject,
can there be properly added a second count charging A with an offenceunder section 146 of the Penal Code ?
Firstly, there would be no doubt that an offence under section ll|had been committed, for, in terms of the requirements in section 146
an offence was committed by a member of the unlawful assembly
the offence was committed in prosecution of the common object;
andJj
A was at the time of the commission of that offence a member
of the assembly.. |
A is therefore guilty of " that offence ”, namely the offence of inurdep,and the appropriate count against him on this score would be unde|section 146 and section 296 read together. The appropriatewould then be one under section 296, read with section 146.
*
* 3*66 N. L. B. 29*—3d.
H. N. G-. FEBNAXDO, J.—The Queen v. Ibralebbe
473-
Secondly, -will seotion 180 of-the Criminal Procedure Code permitthe joinder of the two charges against A in one indictment ? Undersub-section (1), the joinder would be valid, if (a) the series of acts formedthe same transaction, a matter on which there would be no room fordoubt, and (6) more offences than one were committed by A in the courseof that transaction. Under sub-section (3) of section 180, the joinderwould be valid if some of the acts constitute an offence, and all tke actstaken in combination constitute a different offence. The Crown Counselwould therefore ask himself whether A did indeed commit two differentoffences, i.e. whether the offence under section 146 is distinct from theoffence under section 296. This question is affirmatively answeredby the Privy Council in Barendra Kumar v. Emperor1 and by our Courtof Criminal Appeal in Heen Baba’s case 2 in opinions cited by my brotherFernando in Khan v. Ariyadasa. It is nevertheless useful to under-stand for oneself why that answer is correct. It is technically correctthat, on the facts as assumed, the charge which may be framed againstA under section 146 of the Penal Code would be one of murder. Butin truth the acta which render A guilty of the offence under section 146are distinct from the acts which constitute murder within the defini-tion in sections 293 and 294 of the Penal Code. The offence under section146 consists in A’s having been a member of an unlawful assembly, havingthe common object of causing X’s death, at a time when some memberof that assembly actually caused the death in prosecution of that commonobject. The ingredients of this offence are surely different from those in-volved in the offence of murder under section 296. The ingredients whichI have numbered (1), (2) and (3) earlier in this judgment completely satisfythe definition of murder : it is only because of the existence, in addition.of the ingredients (4) and (5) that A becomes guilty of the offence createdby section 146. If I may try to state the distinction quite simply:A person is guilty of the offence of murder defined in section 294 becauseHE caused^ death ivith the requisite intention, but a person is guiltyof the offence (of murder) created by section 146 for an entirely differentreason, the principal reason with reference to himself being becausehe was a member of a particular unlawful assembly at a time when murderwas committed in prosecution of the common object.
– —* <
It seems to me then that two different offences were in fact committed,and that sub-sections (1) and (3) of section 180 of the Criminal ProcedureCode, if not also sub-section (2), render perfectly legal the joinderof two charges, under section 296, and section 146 with section 296respectively, against A upon the supposed facts. I realise of coursethat in such a case where only one person is to be charged, such a joinderwould not be made in practice, upon grounds of redundance or superfluity.But we are here concerned only with the argument as to legality, andboth precedent and reason lead me to the conclusion that the joinderof the two charges against A is authorised by the Criminal ProcedureCode.
1 1025 A. I. R. (P. C.) 1.
s (1050) 51 27. L. R. 255.
474
H. N. G. FERNANDO, J.—The Queen v. IbraUbbe
j-•—■—■—•———
Tbe opinion has often been expressed that section 149 of the IndianPenal Code (which is equivalent to our section 146) creates a vicariousor constructive liability ; and a joinder of a count charging A with murderagainst section 296 with a count charging B, C, D and E and A himselfwith the offence against section 146 read with section 296 may appearto be inconsistent with that opinion. Bat the commonest case of theapplication of section 146 is one where the very member who commitsthe offence of murder in prosecution of the common object of an un-lawful assembly is charged and convicted of the offence under section146 read with section 296. Thus where an unlawful assembly is allegedto have consisted only of five named persons, and all five are chargedwith tbe offence under section 146 read with section 296, tbe very basisof the charge is that one of the five did commit the murder. The groundfor his conviction is not the fact that HE committed murder and isnot different from the ground for the conviction of the other four members :the ground in each case being membership of the assembly at a time whensome member committed the murder in prosecution of the common object.
In Renzaddi v. Emperor1 it was recognised as “ settled law that whena person is charged by implication under section 149 he cannot be con-victed of the substantial offence In considering and accepting thisproposition, our Court of Criminal Appeal2 observed that when a personis acquitted of the offence under section 149 “ he cannot be convictedof having committed the offence by Ms own acts in the absence of a charge ithat he did so ;s thus implying, not only that the two charges are distinct,but also that if the substantive charge is framed in addition to the chargeunder section 149, there may be a due conviction on the former, despitean acquittal on the latter charge.
I do not doubt, therefore, that a count charging A with murder undersection 146 can be lawfully joined with a count charging him directlywith murder under section 296.
Let me now introduce into the supposed facts before the Crown Counselone further element, namely, that according to the evidence, B, C, D,and E are also identified as having been members of the unlawfulassembly at the time when A caused the death of X. Can Crown Counselnow add, in an indictment charging A with the murder of X undersection 296, a second count charging A, B, C, D and E with murder undersection 146 1 It will now be necessary to examine section 184 of theCriminal Procedure Code. In the same transaction, A, B, C, D and Eall committed an offence (under section 140 of the Penal Code) of beingmembers of an unlawful assembly; so also they committed the offenceunder section 146 of being members of that assembly at the time whenone of its members committed murder in prosecution of the commonobject. They are thus accused of jointly committing the same offence,as contemplated in section 184, and they may be charged together foroffences under section 140 and seotion 146 of the Penal Code. Butin addition, in the course of the same transaction, A alone committed1 1912. 13 Cr. L. J. 502.* [1950) 51 N. L. R. 265 at 211.
H. 1ST. Gk FBB2TA2EDO, J.—Tfte Qiiscn ». ZbreMfoa475
ihe offence of murder defined in section 294 of the Penal Code, whiohhas been shown above to be different from, the offence he himself com-mitted under section 146.
Section 184 of the Criminal Procedure Code authorises joinder ofpersons “ when more persons than one are accused of jointly committingthe same offence or of different offenses committed in the same trans-action”. This language may at first sight give the impression that thewords ”jointly committing” govern both, “the same offence ” as well as:t different offences But a closer reading shows that two differentcases are here contemplated ;—
(а)Where more persons than one are accused of faintly committing
ike samo offence ; and
(б)Where more persons than one are accused of, different offences
committed in the same transaction, (There is hers no require-ment of joint commission.)
'Under the first head are cases in which persons jointly commit the sameoffence under the second are cases such as those mentioned in illustra-tions (b) and (c) to the section* in which, several persons may have com-mitted different offences, but in the same transaction. Upon the factswhich I am supposing, the charges against A. B, C, D and E for theoffences against sections 140 and 140 of the Penal Code would fall underthe first head. Those charges may be tried together with the chargeagainst A alone for the offence against section 286, because, under thesecond head, that was a different offence.committed by him in the sametransaction.
I have tried thus far to explain why in my opinion it would be legal,upon appropriate facts, to join together a charge against one personfor an offence against section 296 with charges against the same person-and others for offences against sections 140 and 146. If such joinderis legal, it follows quite reasonably that a charge against two or morepersons for the offence against section 206 may be joined to chargesunder sections 140 and 140 against the same persons.
In, a tingle count of an indictment charging five persons with the murdernf X, the joinder of persons is authorised by section 184 of the Criminal.Procedure Code because all five ore accused of jointly committing the•same offence in pursuance of a common intention. If in addition thereis evidence that the same five were in the course of the same transactionmembers of an unlawful assembly, a second count may be added for theoffence against section 140 M the Penal Code for the reason that thejoinder of persons is authorised by section 1S4 and the joinder of chargesauthorised by section 180 (the two sections can apply in combination,®f. section 178). For the same reason, i.e. the application of sections 134and 180 in combination, a third count for the distinct offence againstsection 143 read with section 206 of the Penal Code may he added against*3. five persons, for all are here jointly acnessd of c&s}in$£s$ kSsoffence (section 184), and more offences tmn one n&rz committed by the same
476
H. N. G- FERNAjSTDO, J.—Tho Quern v. JWaWra
persons in the course of the-same transaction (section 160 (1)). Indeed,,a farther application of section 184 would authorise a fourth countcharging only one of the five with some different offence such as theft'or indecent assault committed in the same transaction.
In Seen Baba’s case1 the Court of Criminal Appeal decided that wherean indictment charges several persons with an offence alleged to haveheen committed on the basis of their membership of an unlawful assembly,it is illegal for the Jury to convict them of that offence on the basis ora common intention. The opinion that the two offences are distinctwas fundamental to the decision, and, with respect, my own considera-tion of the matter1 has led me to the same opinion. But even if it conbe thought that the two offences are not distinct but are the sains,then all that is unusual in an indictment containing both the charges-is that the same persons are twice charged in one indictment with tire-some offence. If then they are convicted, whether on one such chargeor on both of them, is any failure of justice involved, or rather is there-merely a technical irregularity which has no prejudicial consequence?If both offences are the same, then both charges are also the same, an li-the indictment is only as defective as an indictment in which there are-quite accidentally two counts each in identical terms charging one-person with the identical offence. Even, therefore, in this contrary viewwhich I consider untenable, section 425 of the Criminal Procedure Code-;must be applied. It is important to bear in mind the somewhat peremp-tory terms of section 425 :—
ISTo judgment passed by a court of competent jurisdiction stiaW:be reversed … on appeal. . on account of any error. ..7
or irregularity …. in the charge. … unless such error-
. has occasioned a failure of justice.”
Again, why in such circumstances should not the Proviso to section 5 (1^of the Court of Criminal Appeal Ordinance be applied? Even if the point'raised in the appeal must succeed, can it be said that any “ substantial^miscarriage of justice has actually occurred ”?
For the reasons stated, I must disagree with the decision in the recent-case of Don Marthelis and I hold that the indictment in the present cas£was lawful. On the facts, I see no reason to interfere with the convic-tions and sentences. I would therefore dismiss the appeals.
T.S. EjSJi^ANDO, J.
As I have recently expressed my own opinion on the question of law*raised on these appeals, I have nothing to add. I agree with my brothelthat the appeals fail both on the question of Law and on the facts.
Appeals dismissed.
* (1950) 51 N. L. B. 265.