Present: Fisher C.J., Drieberg J., and Jayewardene A ,J.

HEWAVITARNE v. APPUHAMY.

229- P. C. Badvlla, 1,367.

    Affray-Persons charged together-Legality-Criminal Procedure Code.

Two persons who are charged with committing an affray may be tried together in the same proceedings.

CASE referred by Jayewardene A. J. to a Bench of three Judges on the question whether two persons who are charged with committing an affray may be tried together.

Garvin, for appellant.-Two opposing factions cannot be charged together in the same proceedings. Illustration (d) of section 184 of the Criminal Procedure Code supports this view.

It has been held in numerous decisions of the Supreme Court that it is a fatal irregularity to charge members of opposing factions in the same proceedings. The reason being that a conflict of defences may result if such procedure is adopted. Opposing factions have conflicting interests. (Velaiden v. Zoysa1[1 (1910) 14 N. L. R. 140.]; Keegal v. Mohideen2[ 2 5C.W. R. 162.])

An affray is only created by two factions, and it requires two or more persons to create a faction. (.Police Officer v. Dineshamy3[3 21N.L R. 127.])

Counsel contended that the principle of these decisions were applicable to the present case in that the illustration (d) of section 184 of the Criminal Procedure Code had been held to be applicable to case of affray.

Basnayake Acting C. C), for respondent.-The offence of affray must have the following ingredients :-

(1) That two or more persons' were fighting.

(2) That the fighting was in a public place.

(3) That the fight disturbed the public peace.

See Gour, vol. I., p. 885, ed. 1928.

The essence of the offence is " A breach of the King's peace." In a charge for the offence of affray the extent of the injuries, the person who initiated the affray by striking the first blow does not matter. The moment the King's peace is disturbed by two or more persons fighting in a public place the offence is committed.

Two persons jointly commit one offence. In the case of a riot two opposing factions do not always exist. A riot can be committed by one party who have made up their minds to commit the offence.

Premeditation is not needed to constitute the offence of affray. Whether a person acted in self-defence or not, when attacked suddenly in a public place, does not enter into the decision of the question as to whether an affray was committed.

There is no direct authority to the effect that persons committing an affray cannot be charged together under section 156.

English practice is to charge persons committing an affray in the same indictment. See Russell on Crimes and Misdemeanour.

July 30, 1928. FISHER C.J.-

In this case the appellant and another man were convicted of committing an affray under section 157 of the Ceylon Penal Code They were tried together, and it is contended on their bebalf that the conviction is bad on that ground. The appeal originally came before Jayewardene A.J., who in view of the case of Abeyewardene v. Fernando et al.1[1 (1924) 27 N. L. R. 97.] reserved the question for the decision of three judges.

The facts in the present case seem to be very similar to those in the case referred to in which two rival boutique-keepers were bound over to keep the peace under section 81 of the Criminal Procedure Code. The point was taken that they must be treated as members of opposing factions, and therefore not triable together, and Sir Anton Bertram C. J. feeling himself bound by the decisions in Velaiden v. Zoysa,2[ 2(1910)14 N.L.R.140] Wickremesuriya v. Don Leuris,3[3 (1915) 1 C. W. R. 192.] Keegal v. Mohideen and others4[ 1 (1918) S C. W. R. 162.] and Police Officer v. . Dineshamy et al.2[3(1919)21N.L.R.127.] reluctantly upheld that view and allowed the appeal.

By section 156 of the Penal Code an affray is committed " when two or more persons, by fighting in a public place disturb the public peace".