063-NLR-NLR-V-33-WEERASINGHE-v.-MOHAMADU-ISMAIL.pdf
Weerasinghe v. Mohamad u Ismail.
245
1932 Present: Macdonell C.J., Garvin S.P.J., and Dalton J,WEERASINGHE v. MOHAMADU ISMAIC.
533-563—P. C. Puttalarn, 13,442.
Affray—Two • opposing factions—Joint- trial—Criminal Procedure Code, s. 184,illustration (d).
Members of (wo opposing factions charged with affray may be triedtogeher.
C
ASE referred by Maartensz A.J. to a Pull Bench on the questionwhether two opposing factions charged with affray may be tried
together.
Hayley, K.C. (with him Nadarajah), for sixteenth to thirty-firstaccused, appellants.—The first to fifteenth accused formed members ofone party, and the sixteenth to thirty-first accused were members ofn rival party. It is submitted that members of opposing factions shouldnot be tried together on a charge of affray (Velaidan v. Soysa1; Keegal v.Mohideen 2; Police Officer v. Dineshamy 3). In Abeyiuardene v. Fernandoet ah* Bertram C.J. doubted the correctness of this principle, but held thathe was bound by it. The Divisional Bench differentiated the earliercases, but did not overrule them, in Hewavitame v. Appuhamy.5
1 14 N. L. R. 140.* 5C.W. R. 162.
4 30 N. L. R. 33.
21 N. L. R. 127.
27 N. L. R. 97..
Weerasinghe ©. Mohamadu Ismail.
The Criminal Procedure Code, section 178, is the governing sectionwith regard to the joinder of accused. Every distinct offencerequires a distinct charge and a distinct trial. When a number ofpersons engage in a fight, there are several distinct offences of affraycommitted.
[Gabvin S.P.J.—Does not the fact that there is concerted action makea difference ?]
The element of concerted action and common intention has no placein the offence of affray, which connotes a breach of the peace beingcommitted unexpectedly and without any previous intention (Gour’sPenal Gode, p. 817, 3rd ed.). As soon as we have concerted action,
, the offence committed is that of rioting and not of affray.
The joint trial of members of opposing factions is calculated to embarrassthe accused in their defence. The law will not permit accused persons tobe tried together in circumstances which indicate that they will therebybe prejudiced. Every accused might have a separate defence to the•charge, and the Magistrate will find it difficult to distinguish the case ofeach accused.
[Macdonell C.J.—But section 184 of the Criminal Procedure Code is.merely discretionary.]
In any event it is submitted that general evidence alone is not•sufficient to justify a conviction. Distinct acts of fighting must beafield against each individual accused before he can be found guiltyof affray (Bussell on Crimes 406; Archbold (26th ed.); p. 1228).
Ameresekera and E. F. N. Graiiaen for first to fifteenth accused,■appellants, adopted the above arguments, and further submitted thatthe accused had been committed for trial; no charge of rioting on theidentical facts proved in this case. The offences of rioting and affrayare mutually exclusive, and if an offience of rioting was disclosed by•the evidence the Magistrate had no jurisdiction to try the accused.summarily for affray (Criminal Procedure Code, section 193 (2) ). Inthe alternative, affray constitutes a minor offence and is subsidiaryto the major offence of rioting. The Magistrate is not entitled totry the accused on the lesser offence and thereby confer on himselfjurisdiction. The accused have now been found guilty of affray. Ifthey are subsequently convicted of rioting, a double sentence would beimposed in respect of the same transaction. The practice of splittingup a serious offence and charging and sentencing accused personsseparately in respect of subsidiary offences has been – discouraged bythis Court (vide Sub-Inspector of Police v.. Evebinu Appu 1). Counselalso referred to section 67 of the Penal Code.
[Dalton J.—This is not a question that has been referred to theDivisional Bench.]
But the matter can be dealt with in revision.
J.E. M. Obeyesekere, C.C., for the respondent, not called upon.
» 31 N. L. R. 446.
MACDONELL CJ.—Weerasinghe v. Mohamadu Ismail.
247
April 25, 1982. Macdonell C.J.—
This was a matter referred by Maartensz J. to a Full' Bench for decision..We gave a short judgment at the rime, but announced' that we wouldgive a considered judgment later, which we now do.
The matter referred by Maartensz J. was jthe question “ whether two*opposing factions charged with affray can or cannot be tried together ”,and he drew the attention of the Court to illustration (d) to section 184of the Criminal Procedure Code. The section and illustration are aafollows:—
“ 184. When more persons than one are accused of jointly committingthe same offence or of different offences committed in thesame transaction or when one person is accused of committing,any offence and another of abetment of or attempt to commitsuch offence, they may be charged and tried together or separate*ly as the court thinks fit; and the provisions contained in theformer part of this chapter shall apply to all such charges.
Illustration.
** (d) A and B are accused of being members of opposing factions in a.riot. They should be indicated and tried separately.”
According to the evidence, the facts in the case were that there was adispute between two factions of the Muslims in Karativu with regard to.the affairs of the mosque there. The first to fifteenth accused formed onefaction called the ‘ ‘ Sinne party ’', while the sixteenth to thirty-first accusedformed another faction called the ” Peria party On several occasions,the Udayar had had to interpose to prevent a breach of the peace, but onthe day in question his efforts were of no effect, there was a fight between?the two factions in a public place and for this fight the thirty-oneaccused were prosecuted under section 157 of the Penal Code as for an.affray. It is to be observed, further, that according to the evidence itwas one fight and not several—persons, time, and place all seem to havebeen the same.
The main reason for the present reference is the doubts expressed by*Bertram C.J. in Abeyewardena v. Fernando and others' commenting onprevious decisions. In that case objection had been taken that “ where-persons before the Court are members of opposite factions involved-in a disturbance, they ought not to be tried .together but should be tried'separately”; and Velaiden v. Soysa2, Wickreme&uriya v. Don Lewis 3,Keegal v. Mohideen4, and Police Officer v. Dineshamy 5 were cited insupport of this. Bertram C.J. upheld the objection with some reluctance*and in deference to what he considered authority, and he added, loc. cit.v It seems to me that in cases of this sort where there is a mutual assaultor affray in a public place, or any sort of disturbance between variouspersons, it would often be most convenient and reasonable to bring themtogether before the Court, have all the circumstances investigated, and*have the several accused dealt with according to their responsibility.”
5 1C. W. R. 192.
1 SC. W. R. 162.
» 27 N. L. R. 97.
1 14N. L. R. 140.
• 21 N. L. R. 127.
248
MACDONELL C.J.—Weeratinghe v. Mohamadu Ismail.
Affray is defined by section 156 of the Penal Code as follows:—“ Whentwo or more persons, by fighting in a public place disturb the public peace,they are said to commit an affray." There must then be more personsconcerned than one and the gist of the offence is their joint action offighting in public to the disturbance of the public peace, and the two ormore persons involved commit one and the same offence by reason ofsuch joint action. They are therefore persons, who in the words ofsection 184 of the Criminal Procedure Code, “ are accused of jointlycommitting the same offence ” and under that section they “ may becharged and tried together or separately as the Court thinks fit"; andsee per Fisher C.J. in Hewavitame v. Appuhamy *. But if the offencebe a joint one none the less the part taken by each joint offendermust be proved against him and this essentially differentiates the offenceof affray from that of riot. Once there is sufficient evidence to provea riot, namely, the number of persons, the common object, and tlje violencein prosecution of the common object, every member of the assemblyguilty of the riot is responsible for the acts of every other member inprosecution of that common object. This rule of law imposing this jointresponsibility explains the enactment of illustration (d) to section 184of the Criminal Procedure Code. It would be embarrassing and unfairto a member or members of one faction charged with riot to be tried alongwith a member or members of the opposing faction charged also withriot, hence the enactment that they should be indicted and tried sepa-rately. There would seem to be a logical reason also. One of theingredients of riot is violence in prosecution of a common object, andwhere two factions are contending, it is doubtless the common objectof faction A to injure faction B, and of faction B to injure faction A,but it might be difficult to show that the two factions were, as an assembly,animated by any one common object. Analysis of their intentionsseems to show the existence of two objects, not of one object in common,and, if so, this is a good reason for not allowing the two factions to betried together for riot. But no such rule applies in cases of affray, evenwhere two factions are involved. Affray is a joint offence in so far thatit takes more than a single person to commit it, but it is also an individualoffence in that to find anyone guilty of It, it is not sufficient to prove actsof fighting by others in a public place, not even acts of his own faction,it is necessary to prove such acts against him individually. Consequentlyillustration (d) to section 184 does not apply to the case of affray bothby its terms, for it speaks of riot only, and in essence, since the twooffences, riot and affray, are essentially distinct for the reason just given.I would respectfully concur with Bertram C.J. in Abeyewardena v. Fer-nando and others (supra) that it is both convenient and reasonable to tryall the participants in an affray in one proceeding. It is certainly the ruleunder English law, to try jointly all persons accused of affray, and if so,the same rule should apply under our law a fortiori, since by Englishlaw to prove affray it is not necessary to prove actual violence but onlythat the acts proved have caused terror to the King’s .subjects (Archbold,27th ed., p. 1232), while by section 156 of the Penal Code it is necessary
1 30 N. L. R. at p. 35.
Hong Kong and Shanghai Bank o. Krishnapillai.
to prove ac.tual fighting, so that there is the less risk on a joint prosecutionof any person being unjustly convicted, since an act of fighting must beproved against him individually without which he cannot be found,guilty.
For these reasons I would answer the question put to us in the affirm-ative and say that two opposing factions charged with affray can beindicted and tried together, also that illustration (<Z) to section 184 ofthe Criminal Procedure Code does not apply to a case of affray.
There was a further point raised before us under section 193 (2) of the*Criminal Procedure Code, namely, that the Magistrate should havestayed further proceedings because an offence* had been disclosed not- ..within his jurisdiction to try. This was not one of the points referred to*this Court by Maartensz J. and it does not seem to be a matter which,arises definitely from the evidence in this case. It would appear thatsection 193 (2) requires either that the Magistrate's attention must bedrawn to the fact that there is evidence disclosing an offence beyond his*jurisdiction, or that this fact must leap to the eye from what has beenproved in the case before. In any case, this point was not one that was*referred to us in this case.
Garvin S.P.J.—I agree.
Dalton J.—I agree.