040-NLR-NLR-V-78-T.-THEVAKADACHAM-accused-appellant-and-K.-B.-PUSVELLA-Inspector-of-Police-T.pdf
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Thevalcadacham v. Pusvella
Present : Udalagama, J., and Malcolm Perera, J.T.THEVAKADACHAM, accused-appellant, and K. B.PUSVELLA, Inspector of Police (Traffic), Complainant-
Respondent
S. C. 989/73—M. C. Jaffna 6836
Motor Traffic Act—charge on two counts—Charge of failure to avoidaccident tacked on to charge of negligent driving—propriety ofthe conviction on both counts.
Where the accused-appellant was charged on two counts underthe Motor Traffic Act, namely with contravening S. 151(3) and S-149(1) and the'Magistrate found the accused guilty on both counts.
Held, that a charge under S. 149(1) of the Motor Traffic Act,namely failure to take such action as may be necessary to avoid anaccident, should not be tacked on to a charge of negligent drivingas a matter of course. Unless the prosecution is able to prove whatappropriate action the driver should have taken, in the circumstancesof the case, to avoid the accident, it will be futile to add a chargeof failure to take such action as may be necessary to avoid anaccident, to a charge of negligent driving. The burden is on theprosecution to establish that the driver had failed to take thenecessary action to avoid the accident and if the available evidenceis not sufficient to establish this ingredient of the charge, it shouldnot be tacked on to a charge of negligent driving.
TJDALAG-AMA, J.—Thevakadacham v. PusveUa
311
^^PPEAL against conviction.
Accused-appellant absent and unrepresented.
M. L. M. Ameen, State Counsel, for the Respondent.
August 20, 1974, Udalagama, J.—
The appellant in this case was charged on two counts underthe Motor Traffic Act. On the first count he was charged withcontravening Section 151 (3) and on the second count with con-travening Section 149 (1). After trial the learned Magistratefound the accused guilty on both counts.
At the hearing of this appeal the accused was not representedor present. Judgment was reserved to examine the propriety ofthe Magistrate convicting the accused on both counts.
On the evidence, the learned Magistrate was right in holdingthat the accused appellant was negligent in driving lorryNo. EY-3622 in that he made no attempt to stop or reduce hisspeed on approaching the intersections of Temple road and Na-valar road and permitting the traffic on his right to cross thejunction. The question, however, arises whether the Magistratewas right, in addition to finding the appellant guilty on count 1of negligent driving, finding the accused guilty on the secondcount of failure to take such action as may be necessary to avoidan accident-
This Court has on more than one occasion expressed the viewthat a charge under Section 149 (1) of the Motor Traffic Actshould not be tacked on to a charge of negligent driving as amatter of course. Unless the prosecution is able to prove whatappropriate action the driver should have taken in the circums-tances of the case to avoid the accident, it will be futile to adda charge of failure to take such action as may be necessary toavoid an accident, to a charge of negligent driving. The burdenis on the prosecution to establish that the driver had failed totake the necessary action to avoid the accident, and if the avail-able evidence is not sufficient to establish this ingredient of thecharge, it should not be tacked on to a charge of negligent driving.In M. V. L. Perera v. Inspector of Police M. D■ G. Perera 59 N.L.R.64, H. N. G. Fernando J. (as he then was) held) :
“ A charge under Section 151 (1) of the Motor Traffic Act(Old Ordinance) for failing to take such action as may be
UDALAGAMA, J.—Thevakadacham v. Pzisvella
312
necessary to avoid an accident should not be thoughtlesslyappended to each and every charge of negligent or recklessdriving
The position, however, would be different if on the facts of theparticular case it is doubtful whether the charge that could beestablished is one of negligent driving or failing to take suchaction as may be necessary to avoid an accident. In such a casethe provisions of Section 181 of the Crinvnal Procedure Codewould permit a charge of failing to take such action as maybe necessary to avoid an accident to be framed, in the alterna-tive to a charge of negligent driving.
In the present case, to the charge of negligent driving, a chargeof failure to take such action as may be necessary to avoid anaccident, has been tacked on. On the facts of this case, therecould not have been any doubts in the mind of the prosecutionas to the offence which the accused had committed It is there-fore, not clear as to why a charge of failure to take such action,as may be necessary to avoid an accident was added to thecharge of negligent driving. It is our view that in the presentcase the accused cannot be found guilty of both negligentdriving and failing to take such an action as may be necessaryto avoid an accident.
Police officers are, we find, still filing plaints without a dueregard to the above principles that have been repeatedlyexpressed by this Court causing confusion to accused personsand misleading Magistrates to mak:ng wrong orders. Magis-trates should also be alert to such failures by the police, andsee that when they charge the accused, he is charged on aproperly drawn up charge sheet.
The conviction and sentence on the first count is affirmed. Butthe conviction on the second count is set aside. The fine on theotN/virid count will be remitted to the accused-appellant if it liasalready paid.
Malcolm P=-hera, J.— I agree.
Order varied■