[FULL BENCH.]

1915.   Present  : Wood Renton C. J. and Pereira and Ennis JJ.

THE KING v. SUPPAR et al.

56-61 D. C. (Crim.) Jaffna, 2,617.

Unlawful assembly-Common object--Voluntarily causing hurt-" Other offence "-Penal Code, s. 138.

The expression "other offence" in section 138, sub-section (3), of the Ceylon Penal Code does not mean an offence ejusdem generis with those expressly mentioned in the subsection.

An intention voluntarily to cause hurt can constitute the common object of an unlawful assembly. King v. Carupiah1[(1914) 17 N. L. R. 383.] over-ruled.

THE facts appear sufficiently from the judgment. The case was reserved for argument before a Full Bench by Pereira J.

A. St. V. Jayewardene (with him Arulanandam), for accused, appellants.-The common object set out in the indictment is causing

hurt. This is insufficient to support a conviction under section 188. The offence of causing hurt is not one ejusdem generis with those mentioned in the section. See King v. Carupiah1[(1914) 17 N. L. R. 383.]; also Tambyah's Penal Code 247 ; Tambyah's Reports, vol. VI., p. 78.

Section 138 comes under chapter VIII, which deals with offences against the public tranquillity. If the words " other offence " is given an extensive interpretation and made to apply to all offences as defined in section 38 of the Penal Code, absurd results will follow. Is forging a document secretly and within closed doors, if done by more than four persons, to come within the purview of section 138? Clearly not. Causing hurt is not an offence ejusdem generis with mischief and criminal trespass. The classification in the Code makes it clear. One is an offence against property, the other against person.

S. Obeyesekere, C.C., for the Crown.-Queen v. Nandua2[(1895) 1 N. L. R. 317.] is an authority in favour of the prosecution. It has been the invariable practice to include crimes of violence, at least as constituting the common object, within the purview of section 138. Counsel relied on King v. Peris.3[(1914) 18 N. L. R. 321] Even if " other offence " is to be given the restricted interpretation, causing hurt is an offence ejusdem generis with criminal trespass, inasmuch as causing hurt is a trespass on one's personal rights of safety. It has been held in India that abduction and assault could form the common objects of an unlawful assembly. See 13 W. R. 33, 3 Cal. 584, 22 Bal. 276.

May 18, 1915. PEREIRA J.-

In this case two questions have arisen for decision: (1) Whether in the clause, " To commit " any mischief, or criminal trespass or " other offence, " occurring in the definition of " unlawful assembly " in section 138 of the Penal Code, the expression " or other offence " is to be taken as referring to an offence ejusdem generis with mischief and criminal trespass; and (2) whether " voluntarily causing hurt " is an offence ejusdem generis with mischief and criminal trespass? On both these questions I regret I am obliged to differ from the view taken by the rest of the Court. It has been argued that the definition of the word " offence " in section 38 of the Code is conclusive on the first question; that is to say, that, inasmuch as the word " offence " is defined in a particular way in section 38, the flood gate of offences embraced by that definition is opened the moment the word is used in another section of the Code, and no expression in the latter section itself, or rule of law calculated to give the word a restrictive meaning, can stem the tide. I cannot for one moment accede to this proposition. True, the word cannot he taken as meaning anything other than the meaning assigned to

it by the definition, but what has the definition to do with the Question as to what among the numerous offences embodied by it are indicated by the word used in any particular section of the Penal Code?

The simple question is whether the legal principle of ejusdem generis applies to the wo