Gunaratne V. Soysa Et Al.,

Present: Lyall Grant J. 1928.

GUNARATNE v. SOYSA et al.

709-709A-P. C. Kalutara, 26,814.

Unlawful assembly-Common object-Offence to be specified-Penal Code, s. 138.

In a charge of being members of an unlawful assembly, the offence, which it was the common object of such unlawful assembly to commit, must be specified.

APPEAL from a conviction by the Police Magistrate of Kalutara. Rajapakse (with Wendt), for appellant.

November 15, 1928. LYALL GRANT J.-

The three accused-appellants were charged (1) with being members of an unlawful assembly whose common object was to commit an offence, (2) with voluntarily causing simple hurt to ten persons with clubs and stones, and (3) with committing mischief by damaging a bus.

All the accused were convicted and sentenced on each count. .. On appeal it was objected--(1) That the Magistrate should not  have tried this case as he had previously received a complaint from "one of the complainants against the accused, (2) that a charge of " ' Soysa being a member of an unlawful assembly whose common object was to commit an offence must specify the offence, (3) that there is no evidence against any of the accused of causing simple hurt to any of the persons mentioned in the charge, and (4) that there is no complaint of mischief by the owner or driver of the bus.

I do not think there is any substance in the first, objection. It was not taken at the trial and appears to be a mere after-thought on appeal. There is nothing to show that it ever occurred to the accused that they were prejudiced by the complainants having made a previous complaint against them or that they were in fact so prejudiced.

The second objection is more serious. The offence of being a. member of an unlawful assembly, if proved, may have, far-reaching results. It may make the member responsible for acts which he did not commit and did not intend to commit.

The law therefore requires strict proof that the assembly is unlawful. It is not sufficient to aver that the assembly is for the purpose of committing an offence, without specifying the nature of the offence. In order to make a member of an assembly criminally liable for joining that assembly, it must be clearly shown in what respect the assembly was unlawful, and the nature of the unlawfulness must be specified in the charge, otherwise the accused does not know of what offence he is accused. Suppose he were accused of joining an assembly, the common object of which was to commit a murder, and the evidence showed that the common object was to commit insult, he would be gravely prejudiced in making his defence if he could be convicted without an alteration in the charge.

If, however, as here, the charge merely sets forth that the common object of the assembly was to commit an offence without specifying what offence, it is impossible for the accused to know the charge which he is called upon to meet. Very often an assembly meets quite lawfully, but in course of time it forms the intention to do some unlawful act. That intention is imputed to each individual who remained in the assembly after the general intention is held to have been formed whether he personally had such intention or not. But the intention may change as time goes on. There may be formed an intention to commit trespass and later there may be added an intention to commit arson and murder. Before the latter intention is formed the accused may have left the assembly.

The words of the sub-section are " To commit any mischief or criminal trespass or other offence," not merely to " commit an offence."

The Indian Courts have insisted on the common object being distinctly described in the indictment. See Tafazzul Ahmed Chowdrej Queen Empress [1 26 Indian Law Sep. Cal. Series, p. 633.] "and also Sabir and another ,v. Queen Empress[ 2 22 Cal. 276 (New Series).].

In the latter case the conviction was quashed because it was not clear which

Click Here to Read the rest of this document