BANDARA , Appellant,and INSPECTOR OF POLICE , PADUKKA , Respondent

020-NLR-NLR-V-62-BANDARA-Appellantand-INSPECTOR-OF-POLICE-PADUKKA-Respondent.pdf


BASNAYAEIE, C.J—Bandara v. Inspector of Police, Pad.xi.kka
73
Present : Basnayake,N. G. Fernando, J., and SInnetamby, J.BANDARA, Appellant, and INSPECTOR OF POLICE, PADUKKA,
Respondent.
S. G. 528—M. C. Avissawella, 35297
Charge—Alternative charge—Duplicity—“ Irregularity ”—Motor Traffic Act, No.14
of 1951, ss. 153 (2), 153 (3), 210 (a), 219 (2}^—Criminal Procedure Code, ss.
172, 173, 174, 178, 181, 182, 307, 425.
Where a solitary pedestrian walking along the left qide of the road was struckby a motor car approaching him at a high speed from the rear when the road wasfree of other traffic—
Held, by Feunakdo, J., and Sinnetamby, J. (Basnayake, C.J., dissenting),that the person who drove the motor car could be charged with driving the car“ negligently or without reasonable consideration for other persons using thehighway ” in breach of section 153 (3) of the Motor Traffic Act. Although (a)driving a motor vehicle negligently, and (6) driving a motor vehicle withoutreasonable consideration for other persons using the highway, constitute twodistinct offences, yet, inasmuch as it was doubtful which of the two offencesthe facts which could be proved would constitute, section 181 of the CriminalProcedure Code permitted a charge to be framed in the alternative. Accordinglysuch a charge framed in the alternative would not be bad for uncertainty orduplicity.
Quaere, whether the provisions of section 425 of the Criminal ProcedureCode can be applied in a case where section 181 has been wrongly utilized.Meaning of the expression “ irregularity ” in section 425 considered.
A
TaPPEAL from a judgment of the Magistrate’s Court, Avissawella.This appeal was referred to a Bench of three Judges under section 48aof the Courts Ordinance in view of opinions expressed in Edwin Singho v.Sub-Insjjector of Police, Kadaioatla (57 N. L. R. 355), Warlis v. Scott(59 N. Li. R. 46), Wijesinghe v. Eon Martin (56 N. L. R. 158) andSub-Inspector of Police, Dehiowita v. Perera (27 N. L. R. 511).
S. B. Lekamge, for Accused-Appellant.
E. St. C. B. Jansze, Q.G., Attorney-General, with Ananda Pereira,Senior Crown Counsel, and V. S. A. Pullenayegum, Crown Counsel, forComplainant-Respondent.
Gur. adv. vult.
May 30, 1960. Basnayake, C.J.—
This appeal was first heard before my brother Pulle, but in view ofcertain decisions of this Court mentioned in his written order, whichappeared to him to be irreconcilable, he has referred under section 38 ofthe Courts Ordinance the question arising for adjudication in appeal forthe decision of more than one Judge. In pursuance of an order madeby me under section 48a that the appeal should be heard by a Bench ofthree Judges, it has come up for hearing before qs, The question for
4—lxh
J. N. U 11132 —1,005 (8/SON
74
BASNAYAKE, C.J.—Bandara v. Inspector of Police, Baduhlca
decision is whether the following charge on which the accused has beenconvicted is obnoxious to the provisions of the Criminal ProcedureCode :—
“You are hereby charged that you did, within the jurisdiction ofthis Court, at Mawathagama, on 21st November 1957
being the driver of car No. CY. 8712 drive the same on a publichighway negligently or without reasonable consideration forthe other persons using the highway and thereby knockedagainst one Muhandiramage Marthina Rodrigo of Mawatha-gama in breach of section 153(3) of the Motor Traffic Act,No. 14 of 1951, and thereby committed an offence punishableunder section 219(2) of the said Motor Traffic Act.”
Section 153 sub-section (3) of the Motor Traffic Act, No. 14 of 1951,which contains the prohibitions which are declared by section 216 to beoffences reads :
“ (3) No person shall drive a motor vehicle on a highway negligentlyor without reasonable consideration for other persons using thehighway.”
The subsection prohibits two different acts and hence contains twoprohibitions. It prohibits the driving of a motor vehicle on a highwaynegligently and it also prohibits the driving of a motor vehicle on ahighway without reasonable consideration for other persons using it.The prohibition is not against driving a motor vehicle. It is againstdriving it negligently or without reasonable consideration for otherpersons using the highway. Each prohibition can be violated separatelyor both can be violated at the same time. I shall elaborate this.
A person can commit a breach of the first prohibition without at thesame time committing a breach of the second. In other words, a personcan drive a motor vehicle negligently without at the same time com-mitting a breach of the prohibition against driving a motor vehiclewithout reasonable consideration for other persons using the highway.A motor vehicle can be driven negligently on a highway either whenthere are other persons using the highway or when there are no otherpersons using it. If there are no other persons using the highway at atime when a vehicle is driven negligently, the driver cannot be chargedwith driving a motor vehicle without reasonable consideration for otherpersons using it. Even where there are other persons using the highwaynevertheless an act of driving negligently need not in every case also. involve driving without reasonable consideration for others. A personmay also drive a motor vehicle both negligently and without reasonableconsideration for other persons using the highway.
•.The next question that calls for attention is whether the violation ofeach prohibition is a distinct offence for the purposes of the provisions ofthe Criminal Procedure Code governing the framing of charges. Section.216(a) of the Motor Traffic Act declares inter alia that any person whocontravenes any provision of the Motor Traffic Act shall be guilty of anoffence under the Act,
BASNAYA K l1i, O.J.—Sandora v. Inspector of Police, Pad-uJeka
75
Now what is a provision of an Act in the sense in which it is used inmodern legislation ? It is unnecessary here to do more than brieflyrefer to the development of its meaning in English law. Suffice it tosay that in early English law it was a name given to certain statutes orActs of Parliament, particularly those intended to curb the arbitrary orusurped power of the Sovereign, and also to certain other Ordinances ordeclarations having the force of law. In the reign of Henry TTT it wasused to designate enactments of the King in Council. The term“ statutes ” was a later term. It came into use in the reign of Edward I,supplanting “ provisions ** (Richard & John Maitland—Selected Essaysin Anglo-American Legal History 80). It is also an expression which hasa special meaning in Ecclesiastical Law to which it is needless to refer forthe present purpose.
In modem legislation it has acquired a special and well-understoodmeaning and is now commonly used in that sense in the legislation of theCommonwealth countries. It means an express statement in a legis-lative enactment which declares what the legislature wishes to enact inregard to a particular matter. The expression is thus described in“ Words & Phrases **—
" Actual expression in language ”—the clothing of legislative ideasin words, which can be pointed out upon the page and read with theeye ; not a conjecture, or a supposition, or an inference drawn fromother language referring to a different subject or matter.
The word is used in the Motor Traffic Act in the sense in which I havedefined it above. Section 153(3) therefore contains more than oneprovision and the contravention of each of them is a separate or distinctoffence although the punishment for the two offences is the same(Section 219(2) ). Section 178 of the Criminal Procedure Code providesthat for every distinct offence of which any person is accused thereshould be a separate charge and every such charge must be triedseparately except in the cases mentioned in sections 179, 180, 181 and 184.In the instant case it is submitted that that provision has been violated.
The allegation in the charge is not that the appellant acted in breachof both prohibitions in section 153(3), but that he contravened either oneor the other. Is such a charge legal ? The section of the CriminalProcedure Code referred to above requires that for every distinct offenceof which any person is accused there should be a separate charge and aseparate trial, subject to the exceptions specified therein. The chargeunder consideration clearly contravenes section 178. Hoes it' comewithin any of the exceptions to that section ? It does not come withinsections 179, 180 and 184. Hoes it come within section 181 ? Toanswer that question it is necessary to consider the terms of that section,and the facts of the instant case. That section reads :
“ If a single act or series of acts is of such a nature that is it doubtfulwhich of several offences the facts which can be proved will constitute,the accused may be charged witn all or any one or more of such offencesand any number of such charges may be tried at one trial and in a
76"BASNAYAKE, C.J.—Bandara v. Inspector of Police, Baduklca.
trial before the Supreme Court or a District Court may be included inone and the same indictment ; or he may be charged with havingcommitted one of the said offences without specifying which one.”
An analysis of section 181 will help to determine its scope. Thesection can be availed of—
(а)if a single act is of such a nature that it is doubtful which of
several offences the facts which can be proved will constitute,
(б)if a series of acts is of such a nature that it is doubtful which of
several offences the facts which can be proved will constitute.
In a case to which the section applies the accused can be charged with,and tried for, at one trial—*
(а)all the offences disclosed by the facts which can be proved, or
(б)any one or more of such offences ;
for instance, in an appropriate case separate charges of theft, receivingstolen property, criminal breach of trust and cheating may be laidagainst him and tried at one trial. Or he may, according to the lastlimb of the section, be charged with having committed one of severaloffences mentioned in the charge -without specifying which one. The'kind of charge contemplated is illustrated. The charge in an appro-priate case may run as follows :
“ Youdid onatwithin the jurisdiction of this
Court(specify act)and did thereby commit one of the
following offences, to wit, theft, receiving stolen property, criminalbreach of trust and cheating, punishable under sections 367, 394 and400 of the Penal Code.”
Now as criminal proceedings are instituted under section 148 of theCriminal Procedure Code the decision in a case summarily triablewhether a charge should be made in the manner prescribed in section 181would rest on the authority instituting the proceedings who knows thefacts which can be proved and who is uncertain, on account of thenature of the act or acts of the accused, which of several offences dis-closed by them the accused committed. The facts which can be provedshould not be in doubt. The doubt should be only as to the offence oroffences constituted by them and should arise from the nature of the actor acts of the accused. The need to resort to section 181 would notarise where the act or acts are of such a nature that the facts which canbe proved disclose only one offence. In such a case there would be only.one charge as provided in section 178. But where the act or acts are ofsuch a nature that the facts which can be proved disclose several offencesand it is doubtful which of them the accused committed, then a chargeor charges may be framed in accordance with section 181.
I do not think I need dwell longer on section 181. I shall now turn tothe facts of the instant case. The proceedings were instituted by a
BASNATAKE, C. J.—Bandara v. Inspector of Police, Padttkha
77
written report under section 148(1) (6) of the Criminal Procedure Codeby the Inspector of Police of Padukka. The report contained thefollowing charges :
r< That Don Daniel Emiyage Bandara holding D/L No. 38616 ofPugoda in Dompe did on the 21st day of November 1957 at Mawatha-gama within the jurisdiction of this Court—
being the driver of car No. CY 8712 drive the same on a public
highway negligently or without reasonable consideration forthe other persons using the highway and thereby knockedagainst one Muhandiramage Marthina Rodrigo of Mawatha-gama in breach of section 153(3) of the Motor Traffic ActNo. 14 of 1951 and thereby committed an offence punishableunder section 219(2) of the said Motor Traffic Act.
At the same time and place aforesaid and in the course of the
same transaction set out in count 1 above, the accused abovenamed being the driver of car No. CY 8712 on a highway didfail to take such action aS may be necessary to avoid anaccident in breach of section 151(1) of the Motor Traffic ActNo. 14 of 1951 and thereby committed an offence punishableunder section 226 of the said Motor Traffic Act.
At the same time and place aforesaid and in the course of the
same transaction set out in count 1 above, the accused abovenamed did being the driver of car No. CY 8712 fail to keep tothe left or near side of the road at a bend in breach of section150(1) of the Motor Traffic Act No. 14 of 1951 and therebycommitted an offence punishable under section 226 of thesaid Motor Traffic Act.*’
The charges framed by the Magistrate were in the same terms.
After trial the Magistrate convicted the accused of the first charge andacquitted him of the second and third charges. The prosecution casewas that the accused came at a high speed and knocked down frombehind and injured the witness Marthina Rodrigo as she was proceedingin the direction of Avissawella along the left edge of the road. Theimpact threw her some distance on to a heap of metal. After knockingthe witness down the car went diagonally across the road a distance ofabout 60 feet, and turned turtle. There was no other traffic on the roadat the time. It is not the prosecution case that there were others usingthe highway at the time. The prosecution evidence does not thereforedisclose that the accused committed the offence of driving a motorvehicle on the highway without reasonable consideration for. otherpersons using the highway. The fact that the accused knocked downMarthina Rodrigo does not bring him within the ambit of the secondprohibition. It is not his lack of consideration for Marthina Rodrigothat caused him to knock her down but his inability to control his vehicleand guide it properly. That prohibition is violated when a persondrives a motor vehicle on a highway in such a way as to infringe the.rights of other users of the road and cause inconvenience to them andprevent them from doing what they are entitled to do. As the evidence
2«J. N. B. 11132 (8/60)
78
BASISTAYAKE, C.J.-—Sandora v. Inspector of Police, Padukka
'which, the prosecution was able to place before the Court did not renderit doubtful which of several offences the accused committed the chargein the alternative is unwarranted by section 181.
The question that arises for decision next is whether the prohibition insection 425 of the Criminal Procedure Code applies to the instant case.That section provides—
“ Subject to the provisions hereinbefore contained no judgment *
passed by a court of competent jurisdiction shall be reversed or altered
on appeal or revision on account—
of any error, omission, or irregularity in the complaint, summons,warrant, charge, judgment, or other proceedings before orduring trial or in any inquiry or other proceedings under thisCode ; or
(£>) of the want of any sanction required by section 147 ; or
fc) of the omission to revise any list of assessors, unless such error,omission, irregularity, or want has occasioned a failure ofjustice.”
It is claimed by learned counsel for the Crown that if the charge con-travenes the Code the contravention is an irregularity which has notoccasioned a failure of justice. It is therefore necessary to considerwhat an irregularity is. The word occurs in association with the words** error ” and “ omission ”. Having regard to its associates it should begiven a meaning in keeping with them. In such a context it seemssomething whicn is irregular, i.e., nob regular or not in keeping withpractice. And what is contemplated is an irregularity in the charge, i.e.,a charge properly laid. A charge in contravention of the Code wouldnot be an “ irregularity in the charge ”. Where the charge is contraryto the Code no question of irregularity in the charge would arise. Thequestion that arises is the legality of the charge.
To my mind the words “ irregularity in the complaint, summons,warrant, charge, judgment, etc.” contemplate a charge valid in law butcontaining some minor departure. from the practice in framing suchcharges. If the legislature meant to do so far reaching a thing as savinginvalid charges it would have done so by express words to that effect.The word “ irregularity ” is not synonymous with either the word“ illegal ” or the word “ unlawful ” and in this context contemplates aminor departure from what is regularly done and does not extend to orembrace instances where essential provisions of law have been violatedor ignored. Where the Code lays down a rule and prescribes specificexceptions to it, the contravention of the rule in a case that does not fallwithin any pne of the exceptions is illegal and may correctly be describedas an illegality and not as an irregularity. In a Criminal Code, it must bepresumed that precise language is used, and when the word ** irregularity ”is used the scope of the expression should not be extended to includeillegality. If the legislature intended to extend the ambit of the sectionto cover acts done in contravention of the Code it would not have been
B ASNAYATCR, C.J.—Bandara v. Inspector of Police, Paduhha
79
content -with using an expression such as “ irregularity ” which does notinclude an illegality. Section 425 is not designed to authorise con-traventions of provisions of the Code. A contravention of the rule insection 178 is therefore not saved by section 425 of the Code.
The discussion of the meaning of the expression “ irregularity ” inSweet’s Law Dictionary is useful in understanding its scope in aprocedural enactment.
“ Irregular, Irregularity—When a proceeding (judicial or extrajudicial) is done in the wrong manner, or without the proper formalities,it is said to be irregular or an irregularity —as opposed to a proceedingwhich is illegal or ultra vires. An irregularity may be waived by theconsent or acquiescence of the opposite party or (in the case of judicialproceedings) will generally be allowed by the Court to be set right onpayment of the costs occasioned by it, while a proceeding which isillegal or ultra vires is, as a rule, wholly null and void.”
The view I have expressed above gains support from the decisions ofthis Court. It has been held—
{a) that misjoinder of parties and causes of action (Banda Kor ala v.Siyatu et al. x, King v. Arlis Appu 2 ),
(6) that a breach of section 179 of the Criminal Procedure Code {Rex v.Comelis 3, Edwin Singho v. S. I., Police, Kadawata 4 ),
(c) that the reading in evidence of the depositions of witnesses withoutobserving the provisions of the Code {The Kingv. Don William 5)and
{d) that an infringement of the requirement of section 297 of theCriminal Procedure Code {Wilfred v. Inspector of Police,Panadura 6),
the contravention by a Magistrate of section 187 of the Code.{Ebert v. Perera 7),
do not fall within the ambit of section 425 of the Criminal Procedure Code,
I am unable to reconcile the decision in Police Sergeant, Lindula v.Stewart 8 with the above decisions. In my opinion the decision in PoliceSergeant, Lindula v. Stewart {supra) is wrong.
The conviction is therefore quashed.
This offence was committed on 21st November 1957 and no usefulpurpose would be served in ordering a retrial on the charge of negligentdriving nearly three years after the event when the memory of what thewitnesses saw over two years ago is bound to have faded.
1 {1920) 8 G. W. R. 309.
{1920) 8 G. W. R. 236.
{1911) 5 Weerdkoon 89.4 {1956) 57 N. L. R. 355.
8 {1920) 8 G. W. R. 324.a {1945) 46 N. L. R. 553.
7 {1922) 23 N. L. R. 362 {3 Judges)* {1923) 25 N. L. R. 166.
80 H. N. Qr. FERNANDO, J.—Bandara v. Inspector of Police, PadukkaBL N. G. Fernando, J.—
X have had the advantage of reading the judgments prepared in thisappeal by my Lord the Chief Justice and my brother Sinnetamby.Having regard to the opinion held by them both that (a) driving a motorvehicle negligently, and (6) driving a motor vehicle without -reasonableconsideration for other persons using the highway, constitute " distinct ”offences within the meaning of section 178 of the Criminal Procedure• Code, and having regard also to the similar opinion expressed by theCourts in England on the corresponding provision of the English TrafficLaw, nothing would be gained by the statement of any contrary view ofmine. Accordingly, but with hesitation, X accede to that opinion, whichin practice should not create any substantial difficulty in the matter ofthe framing of charges in cases under section 153 of the Motor Traffic Act.
Section 178 requires that there shall be a separate charge and aseparate trial for each distinct offence, subject to exceptions only one ofwhich is relevant for present purposes, namely, that provided for bysection 181 under which a person may be charged with two or more(distinct) offences in the alternative “if it is doubtful which of severaloffences the facts which can be proved will constitute ”. There areseveral decisions of this Court to the effect that the section should not beutilized unless there is a genuine doubt as to which of two or moredifferent offences the provable facts do constitute : (e.g. R. v. GabrielAppuAmerasinghe v. S her riff2; and Windus v. Veerappen3). Thefacts of these cases, in all of which the provisions of sections 181 and 182were held to be inapplicable, serve to illustrate the object and scope ofthe sections. For example, a person charged with a contravention of aMunicipal by-law prohibiting the occupation of a market stall withouta licence, could not be alternatively charged under section 181, or con-victed under section 182, of the offence of selling beef without the per-mission of the proper authority. Again the provable fact that alabourer neglected to perform his duties as such would not justify aconviction for the offence of neglect of duty, if he had been charged, notwith that offence, but with the different offence of quitting the serviceof his employer without reasonable cause. The sections will, however,apply where, to use the language of De Sampayo, J., the alleged actof the accused is of <e the ambiguous nature ” therein contemplated.
While being willing to concede that the Legislature intended insection 153(3) of the Motor Traffic Act to create two distinct offences, Imust confess that I would find much difficulty in attempting to definethe distinction between (a) “ negligent ” driving, and (6) driving“ without reasonable consideration for other persons using the highway ”,and do not propose to make such an attempt. One' can envisage a motorvehicle being driven in such a manner as to constitute clearly or evenmanifestly the offence of negligent driving (although even in such a casethe prosecution would be faced with the difficulty of deciding whether-the offence is not that of “ reckless ” driving also created by section153(2) ). But where there is no decisive feature in the available evi-dence concerning a road accident involving a motor vehicle which collides
» (1896) 2 N. L. R. 170.2 (1918) 5 G. W. R. 81.
8 (1920) 8 G. W. R. 11.
EL. N. G– FERE A2TDO, J.—Bandara t>. Inspector of Police, JPadukka
81
with, another vehicle or injures a pedestrian, both prosecutor and judgewould find it quite difficult to decide whether the proper inference fromthe facts should be one of negligence or else of lack of consideration forother users of the highway. Indeed it seems to me that doubts of thenature contemplated in section 181 of the Criminal Procedure Codewould arise quite often in the case of charges to be framed under thesecond and third sub-sections of section 153 of the Motor Traffic Act.
As my brother Sinnetamby points out, there was on the road at therelevant time the woman who was injured upon being struck by thevehicle driven by the appellant, and I certainly agree with his opinionthat the offence secondly mentioned in section 153(3) can be committedin respect of any one person using the highway. If then, as was thecase here, a single pedestrian walking along the left side of the road isstruck by a motor car approaching him from the rear and the road is free ofother traffic, can it be said that a police officer filing a plaint or aMagistrate framing a charge should be in no doubt that the provablefacts establish so clear a case of negligent driving that the possibility ofthe inference of driving without reasonable consideration for other usersmust necessarily be ruled out ? I can best answer this question that Ihave posed by stating that, if the learned Magistrate had chosen to drawthat inference and entered a conviction accordingly in the present case,I would have found myself quite unable to overrule his decision inappeal. It seems to me that in almost every instance where a pedestrianon a public highway is struck by a motor vehicle in circumstances not inany way beyond the control of the driver, a case of “ driving withoutreasonable consideration ** is thereby established beyond doubt. Theonly doubt that can exist in such a situation is whether the driver is alsoguilty of “ driving negligently ”, and I am satisfied that such a doubtin the sense contemplated in section 181 did exist in the present case.
Let me take in this context a set of facts upon which a person isproperly charged in terms of section 1S1 with theft or in the alternativewith receiving stolen property. It is in practice quite unusual insuch a case for section 307 of the Code to be utilized, and ordinarily thetrial judge would, if he convicts the accused, find him guilty of eithertheft or receiving. If then the conviction is for theft, it would bemanifest that the judge’s finding of fact is not that the accused“ received ” the property, but that he stole it, and for legal purposesthere would be -no doubt as to which offence the provable facts did constitute.Nevertheless, the resolution of the doubt by the verdict will not meanthat no such doubt should have existed when the charge was framed.The hypothesis I have taken is that the charge was properly framed in thealternative, and a charge so properly framed cannot become retros-pectively vitiated by reason of the ultimate event. Sections 181 and 182would lead to absurdity if the extinction of doubt at the stage of con-viction means that there should not properly have been doubt at thestage of the charge. In the same way, the fact that the Magistrate inthis case reached an irreproachable verdict of guilty of negligent drivingdoes not mean that a doubt within the meaning of section 181 should notand could not have existed at the earlier stages of the proceedings.
82
SIJNTsTETAMBY, J.—Bandara v. Inspector of Police, PaduJeka
My Lord the Chief Justice, in his analysis of possible cases fallingwithin section 153(3), has listed three categories :—(i) cases of negligentdriving, (ii) cases of “ driving without reasonable consideration ”, and(hi) cases which constitute both offences. With respect, I am in fullagreement thus far. But it seems to me that the failure of the Legis-lature to define the two offences satisfactorily, and the inherent diffi-culties in the way of propounding such a definition, have the consequencethat the majority of cases which actually arise fall into the third categoryand therefore leave prosecutors in understandable doubt when charges-are to be preferred. I differ from my Lord only when I take the viewthat we are concerned in this appeal with a case which falls within the-third category.
In view of the conclusion I have reached, having regard to the evidenceavailable, that the charge in this case was duly framed in terms ofsection 181 of the Code, the question whether the provisions of section425 can be applied in a case where section 181 has been wrongly utilizeddoes not arise for decision in this appeal. Indeed the learned Attorney-General, while he relied on section 425, did not adduce any elaborate-argument on the question, nor were the precedents of Police Sergeant,.Lindula v. Stewart1 and R. v. Per era2 discussed at the hearing. It-strikes me also that there might well be circumstances in which a trialjudge may, upon being satisfied that section 181 has been utilized inerror, properly have resort to the provisions of sections 172, 173 and 174in order to convert into a single charge, one which has been framed inthe alternative. At the least, I think that consideration of the questionwhether section 172 applies at the stage of trial would be relevant to anexamination of the question whether, as a last resort, at the stage ofappeal, section 425 would permit this Court to disregard an error ofa nature as my Lord the Chief Justice finds to have existed in thepresent case. For these reasons I am not at present disposed to expressan opinion on the correctness or incorrectness of the precedents justcited. I would dismiss the appeal.
SlNNKTAMBT, J.
The accused in this case was charged, inter alia, with “ driving vehicleNo. CY-8712 negligently or without reasonable consideration for otherpersons using the highway ” in breach of Section 153 (3) of the MotorTraffic Act of 1951. He was, in due course, convicted.
Objection was taken to the charge. It was contended that a convic-tion on charges in the alternative in respect of two distinct and separateoffences was bad on the ground of duplicity, and in support of thiscontention reliance was placed on the case of Edwin Singho v. Svb-lnspectorof Police, Kadawatta3. Charges in the alternative may, under our‘Criminal Procedure Code, be framed only in those cases contemplated by
» {1923) 25 N. Ii. R. 166.* (1926) 27 N. L. R. 511.
• (1966) 67 N. L. R. 365.
SENTSJETAMBY, J.—Sandora v. Inspector of Police, PaduJcJca
83
Section 181. The first question, therefore, that arises is whether thecharge under consideration was in respect of one offence committed intwo alternative ways or whether it was in respect of two distinct offences.It was submitted by the learned Attorney-General that it involvedonly one offence. In support of his argument he drew the attention of theCourt to the other two provisions of Section 153 and in particular tosub-section (1). That particular sub-section prohibits a person fromdriving a motor vehicle on the highway when he is under the influenceof alcohol or any drug. The gravamen of the charge under Section153 (1) is the driving while in a state of incapacity whether induced bydrink or by a drug. One can understand the ^offence contemplated,by Section 153 (1) being one offence irrespective of whether it was alcoholor a drug which caused the incapacity. In Thomson v. Knights1 theKing’s Bench Division took the view that a similar provision in the-Road Traffic Act of 1930 was not bad for uncertainty as the sectioncreates only one offence and the words “ under the influence of drink ora drug ” are merely adjectival. “ The offence ” Lord Goddard, C.J.,in the course of his judgment stated “ is driving, or attempting to driveor being in charge of a vehicle, when the man is incapable of havingproper control of the venicle, and that incapacity is caused by a drink ora drug.” Lord Goddard went on to say :—“ I do not think Parliamenthere meant to create one offence of being incapable by reason of a drugand another offence of being incapable by reason of drink. What Par-liament intended to provide was that a man driving or attempting todrive, or being in charge of a motor car in a self-induced state of incapa-city, whether that incapacity was due to drink or drugs, the man commitsan offence in each of those cases.” Section 153 (1) is an abbreviatedform of the corresponding provisions of the Road Traffic Act and thereis omitted the following additional words which are to be found in thelatter enactment, namely :—“ to such an extent as to be incapableof having proper control of the vehicle.” Nevertheless, it seems to methat what is penalised is the driving while under a state of self-inducedintoxication irrespective of whether that intoxication is caused by alcoholor by a drug. When, however, the other provisions of Section 158of the Motor Traffic Act are considered, considerable guidance is availablefrom the decisions of the English Courts on similar provisions underthe Motor Car Act and the subsequent Road Traffic Acts in England.I shall now refer to a few of those decisions. • In The King v. SurreyJustices, Ex-parte Witherwick'1 the expression “without due care andattention or without reasonable consideration for other persons usingthe road ” was held to constitute two distinct offences ; namely, oneoffence being the driving without due care and, attention, and theother being the driving without reasonable consideration for otherpersons using the road. The word “ or ” is used in a disjunctive sensein the context. If, instead of the word “ or ” the word “ and ” had beenused, a different construction might arise. In The King v. Jones and.
1 (1947) 1 K. B. 336.
* (1932) 1 K. B. 450.
84
SINNETAMBY, J.—Bandara v. Inspector of Police, Padukka
other Justice#, Ex-parte Thomas1 the accused was charged with, havingdriven a motor car “ recklessly and at a speed which was dangerous tothe public ” in breach of certain provisions of the Motor Car Act of 1903.The Motor Car Act, as pointed out by Lord Coleridge, J. defined fourseparate offences, namely, (1) driving recklessly, or (2) driving negligently,or (3) driving at a speed which is dangerous to the public, or (4) drivingin a manner which is dangerous to the public, but the charge in thatcase was held to be in respect of one single act, namely the act of drivingwhich was both reckless and at a dangerous speed. Had the charge beenin the alternative then the decision in the case of Rex v. Wells2 wouldhave applied. In Rex v. Wells (supra) the charge was for driving amotor car “ at a speed or in a manner dangerous to the public”. LordAlverstone, C.J., in dealing with the question made the following obser-vations :—“ It seems to me it is quite impossible to say that the onlyoffence here is ‘driving at such a speed as is dangerous’, because it isobvious that tnere is the offence of driving at a speed which is dangerousto the public, or the offence of driving in a manner dangerous to thepublic. I do not think you can treat the words ‘ at a speed ’ as surplusage,any more than the words ‘or in a maimer ’ ”. The conviction in thatcase was set aside on the ground of duplicity.
In regard to the question that arises for decision in the present case>I agree with My Lord the Chief Justice that sub-section 3 of section 153relates to two distinct offences, one being “to drive a motor vehiclenegligently ”, and the other “ to drive a motor vehicle without reasonableconsideration to other persons using the highway.” Whatever thelaw may be in England, in so far as joinder of charges is concerned, we,here, are governed by the provisions of the Criminal Procedure Code.Section 181 permits a charge, to be framed in the alternative—in thisrespect apparently differing from the English Law—where it is doubtfulwhich of the several offences the facts which can be proved willconstitute. The ordinary rule, however, is that for each distinct offence,there should be a separate charge and a separate trial. In the presentcase the facts which the prosecution were able to prove are set out inMy Lord’s judgment. They are, that the accused came at a high speedand knocked down Marthina Rodrigo as she was proceeding on the extremeedge of the road on her correct side ; she was thrown some distance onto a heap of metal, and the car went diagonally across the road for adistance of about sixty feet and turned turtle. Apart from Marthina-Rodrigo and the car in question, there was no other road user presentjn the locality at that time. Upon these facts, is it possible for theprosecution to- say with any degree of certainty that the only offence.which the accused could have committed was that of driving negligently ?Tn order to substantiate such a charge there must be established criminalnegligence ; and, if that were the only charge brought and criminalnegligence was not found to have been established, the accused wouldhave .been entitled to an acquittal. The finding of criminal negligenceis based on inferences and no prosecutor can ordinarily say that uponthe faofs available to him a Court must necessarily draw such an
• i (>J921) 1 K'. 'B. 632.2 91 Law Times Reports 98.
SINNETAMBY, J.—Bandcira v. Inspector of Police, Padttkka
85
inference. The facts of this case are consistent both with criminalnegligence and with a disregard to the rights of other road users, or, inother words, a lack of reasonable consideration for other persons using thehighway. My Lord the Chief Justice in his draft judgment which heso kindly sent to me for my information, has taken the view that on thefacts of this particular case the question of whether the accused had orhad not. acted without consideration for other persons using the highway,does not arise. To use his own words, My Lord states :—“ It is notthe prosecution case that there were others using the highway at thetime. The prosecution evidence does not, therefore, disclose that theaccused committed the offence of driving a motor vehicle on the highwaywithout reasonable consideration for other persons' using the highway.The fact that the accused knocked down Martian a Rodrigo does notbring him within the ambit of the second prohibition.” With greatrespect, I find myself unable to agree. Marthina Rodrigo is as mucha road user as anyone else and although the word “ persons ”, in theplural, is used in the sub-section, under our Interpretation Ordinance,the use of the plural includes the singular. In my opinion, it is notnecessary that there should have been other road users apart fromMarthina Rodrigo for the particular provision to apply. If the accuseddrove the car in a way which justifies the possible inference that he diddrive without reasonable consideration for Marthina Rodrigo using thesame highway, he would be guilty of the offence contemplated by thesecond limb of Section 153 (3). On the facts available to the prosecution,the question was whether a conviction could be expected under thefirst limb of that sub-section or under the second, and that dependedon what inference a Judge would draw. In my view, therefore, therewas uncertainty as to which of the several offences the facts -willconstitute and the prosecution was entitled to frame this charge inthe alternative. In the case of The King v. Kitchilan1 the Court ofCriminal Appeal took the view that where upon the facts the prosecutionwas in doubt as to which inference the Court would draw, it was entitledto frame a charge in the alternative. In that particular case the inferencewas with regard to whether all the accused had a common murderousintention or whether they had merely abetted the murder. The obser-vations of Pratt, J.C. in Ganesh Krishna v. Emperor was cited withapproval. It was to the following effect :—
It (Section 236 of the Indian Code which is the same as our Section181) applies only in those rare cases in which the prosecution cannotestablish exclusively any one offence but are able on the facts whichcan be proved to exclude the innocence of the accused and to showthat he must have committed one of two or more offences.”
In the present case it cannot be said that the prosecution couldexclusively establish that the accused committed only the offence of whichhe was eventually convicted, but they are certainly able to exclude theinnocence of the accused and to show that he had committed one of two• or more of the offences.
* {1914) 45 N. L. JEt. 82,
86
The Chettinad Corporation Ltd. v. Carriage
It seems to me, therefore, that the charge as framed was in order andalthough it relates to two offences is not obnoxious to the provisions ofsection 181 of the Criminal Procedure Code. I agree, however, thatit might have been framed with greater care and strictness. Eventhough the charges may under our Code be framed in the alternative,when it comes to convicting an accused, the Judge must convict himof one or the other of the offences and not in the alternative.
In this particular case, the Judge has apparently convicted the accusedof driving negligently and not in the alternative of both offences set out inCount 1 of the charge. His finding is as follows :—“ the fact that thewoman walking along the left edge of the road was in fact knockeddown by a vehicle which came from behind is prima facie evidence ofnegligence. The accused’s explanation is unsatisfactory. I find theaccused guilty on Count 1.” I take it that by using these words theCourt intended to find the accused guilty on Count 1 on the charge ofdriving negligently. I would accordingly affirm the conviction and thesentence, and dismiss the appeal.
Appeal dismissed.