LAW OF CRIMINAL PROCEDURE Part XIX Joinder of Charges VI
By Chandra Tilake Edirisuriya
Know Your Law
As the Privy Council has observed in Khan v Ariyadasa (1965) 67 NLR 145, "There is a difference between the situation where someone who is a member of an unlawful assembly commits an offence as such member and in prosecution of the common object of that assembly, and the situation where someone commits a similar offence without there being the existence of an unlawful assembly," says Prof. G.L. Peiris in his thesis 'Criminal Procedure In Sri Lanka'.
The inherent difference between these two cases is readily demonstrable. If five or more persons are charged in one count with an offence punishable under Section 296 read with Section 146 and in another count with an offence punishable under Section 296, they are being charged with what are, for all practical purposes, distinct and separate offences. It is wrong to regard them as being in reality one and the same offence. That this is so is illustrated by considering the nature and extent of the evidence which could establish guilt in respect of each count. Thus, if it were not established that there was an unlawful assembly (as, for example, if it were not shown that there was an assembly of five or more persons but only of a lesser number), there could not be a conviction in respect of the former count, but the evidence might establish that murder was committed by one of them or, alternatively, by some of them in furtherance of their common intention, in which case one of them or those of them (who might number less than five) who had that common intention would not be convicted under the latter count, the Privy Council has observed in its judgment. It is well recognized, as per the judgment in Barendra Kumar Ghosh v Emperor AIR (1925) PC 1 quoted with approval by Lord Borth-y-Gest in Khan v Ariyadasa, that Section 32 of the Penal Code expresses and declares a general principle of liability, but does not create a substantive offence.
Proof that there was an unlawful assembly might fail for lack of evidence that those composing an assembly of five or more had a common object which was within any one of the requirements incorporated in Section 138 of the Penal Code. If, on the other hand, membership of an unlawful assembly was established, and membership at a time that an offence was committed by some member or members in prosecution of the common object of the assembly, and the offence was such as the members of the assembly knew to be likely to be committed in prosecution of the common object, there would be a conviction on a charge of the offence (under its appropriate Section read with Section 146). However, in such case it would not necessarily follow that, if the principle embodied in Section 32 had been relied upon, there would be a conviction on a charge of the offence. Although the offence was one known to be likely to be committed in prosecution of the common object (in accordance with the language of Section 146), the criminal act might not have been done "in furtherance of the common intention of all" (as Section 32 requires), as stated in the judgment in Khan v Ariyadasa.
Khan v Ariyadasa
The judgement in Khan v Ariyadasa further states that the salient point which emerges from the discussion is that the provisions contained in Section 32 and in Section 146, respectively, have entirely distinct spheres of application. The two provisions are not in pari materia at all, as the former enshrines a general principle of liability, while the latter brings into being a substantive offence. Moreover, the elements of the two provisions are manifestly distinct. "The elements of participation in action which is the leading feature of Section 32, is replaced in Section 146 by membership of the assembly at the time of the committing of the offence. The absence in Section 146 of any provision in respect of punishment cannot be availed of as the basis of an argument that this Section creates no substantive offence. The true position is that "Section 32 creates an offence, but the punishment must depend on the offence of which the offender is by that Section made guilty. Therefore, the appropriate punishment Section must come with it. It was neither desirable nor possible to prescribe one uniform punishment for all cases which may fall within it. It may be pointed out, indeed, that the Penal Code of Sri Lanka provides other similar instances of specific offences being created, where the punishment Section has to be read with the Section creating the offence as stated in the judgment in Khan v Ariyadasa (1963) 65 NLR 29. Examples are provided by Sections 101 an 113A (1) of the Penal Code of Sri Lanka.
The history of the relevant judicial
decisions in Sri Lanka may be succinctly surveyed says Prof. G.L. Peiris.
The first decision of importance is that arrived by the Court of Criminal Appeal, in 1950, in Heen Baba (1950) 51 NLR 265. The question confronting the Court was whether charges of offences (based on Section 32) are implied in charges of offences founded on membership of an unlawful assembly. In Heen Baba's case, the trial judge directed the jury that, where the indictment consisted solely of charges framed on the basis of the existence of an unlawful assembly, even if the jury reached the conclusion that the existence of an unlawful assembly was not established, it was competent for them to find the accused guilty of the substantive offences alleged in those charges read with Section 32.
The Court of Criminal Appeal held that it was not open to the jury to adopt this course in the absence of specific charges of substantive offences, supported by reference to Section 32. In its judgment, the Court observed: "We are of the opinion that, in the absence of a charge, the accused could not have been convicted (of any of the offences) under Sections 433, 380, 383 and 382 read with Section 32". The clear implication is that charges based on the existence of an unlawful assembly could have been validly joined with charges based on the existence of a common intention as set out in Section 32.
The decision in Heen Baba's case was that of three Judges of the Court of Criminal Appeal presided over by Jayatileke SPJ.
However, in 1963 two Judges of the Supreme Court upheld an argument that the indictment presented by the Attorney General was invalid, in that charges based on the existence of an unlawful assembly had been unlawfully joined with charges based on the existence of a common intention. This decision in Don Marthelis (1963) 65 NLR 19 for which no reasons were given, included no reference to the judgments by the Court of Criminal Appeal in Heen Baba's case. But in 1963, in the case of Khan v Ariyadasa, T.S. Fernando J, sitting as a single Judge, regarded the decision in Don Marthelis as per incuriam, and felt free not to follow it.
Again, in 1963, in Ibralebbes's case a Bench of two Judges of the Supreme Court – H.N.G. Fernando J and T.S. Fernando J – re-examined the matter in detail and affirmed the view that Don Marthelis's case had been wrongly decided. Nevertheless, in the same year, in Thambipillai (1963) 66 NLR 58, Basnayake CJ, speaking for the three Judges of the Court of Criminal Appeal, followed the decision in Don Marthelis. In 1965, the law governing the matter was finally settled by the opinion of the Privy Council in Khan v Ariyadasa. Lord Morris of Borth-y-Gest, delivering the opinion of the Judicial Committee, agreed that T.S. Fernando J was right in refusing to follow Don Marthelis's case and that the reasoning in Thambipillai's case was unsound. There is no doubt that the view expressed by T.S. Fernando J in Khan v Ariyadasa and by H.N.G. Fernando J in Ibralebbes's case represents the present law.
On acts falling within two or more separate definitions of any law, Prof. Peiris says, that our law contains provision that "If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished the person accused of them may be charged with an tried at one trial for each of such offences and in trials before the High Court such charges may be included in one and the same indictment".
It has been held, in accordance with this provision, that a charge of conspiracy under Section 113 B of the Penal Code may be joined with a charge of abetment under Section 102 of the Penal Code, if the same facts constitute both offences.
Code of Criminal Procedure Act No. 15 of 1979 also provides, "that if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by any one or more of such acts and in trials before the High Court such charges may be included in one and the same indictment.
Thus, in Weerasinghe (1937) 39 NLR 270, it has been held that, where a person is robbed of a necklace and, in the course of the same robbery, suffers injuries to her face, the accused may be charged with, and tried at one trial for, robbery under Section 380 of the Penal Code and causing hurt in committing robbery under Section 382 of the Penal Code.
On cases of doubt as to the nature of the offence committed, Section 176 lays down that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with all or any one or more of such offences and any number of such charges may be tried at one trial and in a trial before the High Court may be included in one and the same indictment; or may be charged with having committed one of the said offences without specifying which one.
The limits of the principle embodied in this provision have been commented on judicially. It has been observed in Vellasamy (1960) 63 NLR 265, per Basnayake CJ that "This Section is of very limited application, and it is important that it should be confined to its proper limits. It should be so construed as to be consistent with the principles of natural justice".
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