056-NLR-NLR-V-56-B.-S.-COORAY-et-al-Appellant-and-DIAS-S.-I.-Police-Respondent.pdf
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8ANSONI J.—Cooray «. Dias
1954Present : Sansonl J.
S. COORAY et al., Appellants, and DIAS (S. I. Police), RespondentS. C. 105-106—M. C. Colombo South, 42,527
Joinder oj accused—“ Same transaction ”—Criminal Procedure Code, ss. 148 (I) (6),
184, 187 (1)—Excise Ordinance (Cap. 42), ss. 17, 43 (g), 44.
When two or more persons are accused of different offences committed inthe same transaction within the meaning cf section 184 of the Criminal ProcedureCode, it is not necessary that the charge must expressly state that the offenoeswere committed in tho same transaction.
But where the charge is framed by Court under section 187 (1) of the CriminalProcedure Code without any prior evidenoo that the offences were committedin the course of the same transaction and exactly in terms of a police reportwhich does not contain even an accusation that the offences were so connected,an accused person cannot he convicted of the offences if the evidence led at thetrial does not prove that the offences were committed in the course of the sametransaction.
■^LPPEAL from a judgment of tl e Magistrate’s Court, Colombo Soutii.
First accused was charged with selling amtck in breach of section 17of the Excise Ordinance. In the same proceedings first and secondaccused wore charged with unlawful possession of arrack, punishableunder section 44 of the Excise Ordinance. The trial court enteredconvictions on both tho counts.
S. Tl. Lekamge, for the accused appellants.
S. A. Pullenayagam, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
October 1, 1954. Sansoni J.—
A report under section 148 (1) (6) of the Criminal Procedure Code{Cap. 16) was filed in the Magistrate’s Court by a 8ub-Inspector of Policeon 25th June, 1952, in the following terms:—“ I, P. D. P. A. Liyaaage,
SANSON! J.—^-Cooray v. Dias
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H. Q. S. I. Police, Mirihana, in terms of section 148 (l) (6) of the CriminalProcedure Code (Chapter 16) hereby report to the Court that :—(1)
Simon Cooray of No. 70/1, Station Road, Nugegoda, (2) N. A. Jaya-singhe of No. 70/1, Station Road, Nugegoda, did on the 16th day of June,1952, at Nugegoda within the jurisdiction of this Court the above-named1st accused did in contravention .of section 17 of the Excise Ordinance(Chapter 42) sell to A. Wijegunawardene of Nugegoda an excisable articleto wit: Arrack, without a licence granted in that behalf by the Govern-ment Agent and thereby committed an offence punishable under section43 (g) of the Excise Ordinance (Chapter 42) of the R. L. E. (2) At thesame time and place aforesaid the above-named 1st and 2nd accuseddid have in their possession an Excisable Article to wit: about £ bottle(8 drams) of unlawfully manufactured arrack without lawful authorityand thereby committed an offence punishable under section 44 of theExcise Ordinance (Chapter 42) of the R. L. E. ”. The two accused werepresent in Court at the time on Police Bail and the Magistrate framedcharges against them under section 187 (1) of the Code in terms whichare exactly similar to those appearing in the report. The accused seve-rally pleaded “ Not guilty ” and the trial eventually took place on 11thMay, 1953, one counsel appearing for both accused.
It appeared from the evidence of the prosecution witnesses that adecoy was sent by a Sub-Inspector of Police to the 1st accused’s hotelwith instructions to buy arrack. The Sub-Inspector shortly afterwardsfollowed him to the hotel through the back door. They saw the 1staccused seated on a bed in a room, and the 2nd accused standing nearthat bed ; the decoy was standing there with a glass containing arrackiff his hand, and there was a bottle contain'ng arrack on a teapoy in theroom. Under the bed was found another bottle containing arrack.The defence evidence was to the effect that there was no sale, that thebottle alleged to have been under the bed was not in fact there, that thedecoy never entered the premises, and that the Police Officers enteredthe room and assaulted the 1st accused. The 2nd accused admittedthat he lived in that hotel but he denied that he was in the room at tliatparticular time. It was proved by analysis that the bottle on the teapoycontained Government Arrack while the bottle under the bed containedunlawfully manufactured arrack. It was also proved by productionof the householder’s list that the chief occupant of these promises istho 1st accused. Among the names of 14 other occupants in that listwas the name of the 2nd accused who was described as a servant of the1st accused.
The Magistrate accepted the evidence of the prosecution witnesseswhich also proved that the one rupee note which had been given to thedecoy by the Sub-Inspector prior to the decoy going to this hotel wasfound in the 1st accused’s waist. The decoy’s evidence was to the effectthat ilio 1st accused had sold him the arrack which was in the glass.
The Magistrate convicted the 1st accused on the charge of sale, andboth accused on the charge of possession of the bottle of arrack founduntlor tho bed. His reason for convicting both accusod of possessionwas that they were in joint possession of that bottle. It seems to me
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SAN80NI 3 .–Cooray t>. Dias
that aa the 1st accused -was the chief occupier of the premises it is he alonewho, in the circumstances of this case, can be said to have been in posses-sion of the bottle which was found under the bed on which he was seated.Crown Counsel, quite rightly in my opinion, did not seek to support theconviction of the 2nd accused and he should have been acquitted.
The appellants’ counsel did not challenge the Magistrate’s findingsof fact but he submitted that the conviction could not stand becauseof tho irregularity of the charge framed, which thereby rendered theproceedings invalid. He submitted (1) that there was no allegationfhat the two offences were committed in the course of the same trans-action, and for this submission he relied on section 184 of the Code ;(2) that there was no justification for the charges of sale and possessionbeing joined inasmuch as they could not be said to have been committedin the course of the same transaction. I think the answer to the firstsubmission is to be found in section 184 itself. The section refers tocases “ when more persons than one are accused of jointly committingthe same offences or of different offences committed in the same trans-action ”, and provides that “ they may be charged and tried togetheror separately as the Court thinks fit The words “ accused ” and“ charged ” clearly do not mean the same thing. Illustration (a) reads“ A and B are accused of the same murder. A and B may be indictedand tried together for the murder The other illustrations to thissection also make this distinction clear.
In the case of Emperor v. Datto Hanmant Shahapurker *, Batty J.said :— “ Section 239 (which corresponds to section 184 of the CeylonCode) admits of the joint trial when more persons than one are accusedof different offences committed in the same transaction. It suffices forthe purpose of justifying a joint trial that the accusation alleges theoffencos committed by each accused to have been committed in thesame transaction within the meaning of section 239. It is not necessarythat the charge should contain the statement as to the transaction beingone and the same. It is the tenor of the accusation and not the wordingof the charge that must be considered the test The Privy Councilin the case of Choukhani v. King Emperor 2 expressly approved of thejudgment of Batty J., and I might add that in. the case decided by thePrivy Council there was no statement in the charge as to the transactionbeing the same, and no criticism was made regarding this omission. Igather from the judgment of Hearne J. in the case of The King v. Sun-deram 3 that the learned Judge took the same view. Lord Wrightsays in the Privy Council judgment:—“ The clause (that is, section 239of the Indian Code) deals with three matters : accusation, charge, trial ”.The first objection must therefore be deemed unsound. I
I turn now to the second objection taken by the appellants’ counsel.As I have said, the proceedings started with a report filed under section148 (1) (b), and upon that report the Magistrate framed tho charge undersection 187 (1). A similar course would be taken in India by a Magistrate
1 I. L. R. 30 Bombay 49.* {1938) L. J. P. O. 35.
* (1943) 44 N. L. R. 227, at page 230.
SANSONI J.—Coorayy. Bias
in warrant cases, where he would frame a charge under section 254.When such a procedure is adopted by the Magistrate, and he is clearlyacting regularly in so doing, he does not necessarily record evidencebearing on the circumstances under which the different offences werecommitted. If it turns out later that the offences were not committedin the course of the same transaction where the accusation in the reportwas that they did, would the joinder of the charges be irregular ? Ithink not. Take again a case where a Magistrate records evidenceprior to framing the charge and he forms the opinion that several offencesmay be joined in the charge as forming one transaction. It may latertranspire at the trial that the offenoes were not committed in the courseof one transaction. “ The opinion of the Magistrate may be wrong inlaw as to there being a same transaction, or the evidence which led himto tliink prima facie that this- condition existed may be insufficient ormay eventually be falsified ” {per Lord Wright). Even then the pro-ceedings would not be illegal or invalid, for the relevant point of timeis that of the accusation and not of the eventual verdict, but if there isprejudice or embarrassment caused to the accused this Court will interfereand quash the proceedings. But in this particular case which I havenow to decide there was not, in the report under section 148 (1) (6), evenan accusation that the two offences were committed in the course of thesame transaction, nor was any evidenoe led prior to the framing of thecharge from whioh the Magistrate could have formed the opinion, evenwrongly, that the two offenoes were bo connected.
The joinder of the two offenoes can, therefore, be justified only if theevidence led at the trial proved that they were committed in the courseof the same transaction : if it did not, the infringement of section 184would constitute an illegality as distinguished from an irregularity. Inmy opinion the two offences should not have been joined in one charge.There is no connection whatever between them because the 2nd accusedhad nothing to do with the sale. “ We think the foundation for theprocedure in that section is the association of two persons concurringfrom start to finish to attain the same end ”, said Batty J. in the judgment1 have already referred to. In Qopal Raghunalh v. Emperor1 Baker J.said :—“ So long as the accusation against all the accused persons is thatthey carried out a single scheme by successive acts, the necessary ingre-dients of a charge regarding the one transaction would be fulfilled ”.Wijeyewardene J. in Jonklaas v. Somadasaa where an examination ofsection 184 was necessary, said “ In discussing the meaning of this word(transaction) in the corresponding sections of the Indian Code of CriminalProcedure the High Courts of India have held that the substantial testfor determining whether several offences are committed in the sametransaction is to ascertain whether they are so related to one another inpoint of purpose or as cause and effect or as principal and Subsidiary actsas to constitute one continuous action ”. I
I would therefore allow the appeal of the 1st accused also and quashthe proceedings.
Appeals allowed.* (1942) 43 N. L. R. 284.
* (1929) A. 1. R. Bombay 128.