1931
 

Present: Lyall Grant J.

REX v. GUNASEKERE.

132-D. C. (Crim.) Matara, 22.

Joinder of charges-Offence committed in the course of the same transaction-Same time and place-Criminal Procedure Code, s. 180 (1).

Where the accused was charged with others in the same proceeding with being members of an unlawful assembly, the common object of which was to cause hurt and also with causing hurt at the same, time and place to several persons and convicted of simple hurt,-

Held, that there was no misjoinder of charges.

APPEAL from a conviction by the District Judge of Matara.

Hayley, K.C. (with him Roberts), for appellant.

Pulle, C.C., for Crown, respondent.

May 21, 1931. LYALL GRANT J.-

The appellant in this case was found guilty of simple hurt and was sentenced in the District Court to pay a fine of Rs. 25. Leave to appeal was refused and accordingly the present appeal is on a point of law only. There is also a petition in revision. The point of law is that there is a misjoinder of charges. The accused was put on his trial before the District Court of Matara on an indictment which contained 17 counts, of which counts 1 to 9 charged the accused with various offences as a member of an unlawful assembly whose common object was to

cause hurt. Counts 10 to 16 inclusive charged all the accused with causing hurt to seven separate persons. The 17th charge was a charge of robbery against the second accused. The learned District Judge found that there was not sufficient evidence of an unlawful assembly whose common object was to cause hurt and he accordingly acquitted the accused of the first nine charges. He convicted the first accused on the 10th count of having caused hurt to one Jayesekere and acquitted him on the other charges. It is argued that the learned District Judge having acquitted all the accused on the unlawful assembly counts, could not have convicted the appellant of hurt and the trial of all the accused together on the remaining counts was irregular, inasmuch as there was a misjoinder of accused persons and of charges.

Another point of law which was taken was that the learned District Judge having acquitted the accused on the first 9 counts, the offences contained in the other counts were exclusively within the jurisdiction of the Village Tribunal and the District Judge should not and could not have assumed jurisdiction. I think the latter point can be shortly dealt with. Section 61 of the Village Communities Ordinance of 1924, which confers exclusive jurisdiction on the Village Tribunal for the trial of certain offences, provides for the trial by a higher Court of such offences where prosecution is by a public officer. In the present case the prosecution was by the Police.

On the question of misjoinder section 178 of the Code provides that separate charges shall be made in respect of distinct offences and every such charge shall be tried separately except in the cases mentioned in sections 179, 180, 181, and 184, which sections may be applied severally or in combination.-Section 180 (1)provides that in the case of one series of acts connected together so as to form the same transaction if more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence and in trials before the Supreme Court or District Court such charges may be included in one and the same indictment. In regard to this section it was argued that when the charge of unlawful assembly failed, there was nothing to connect the offences charged in counts 8 to 16. The only connection between them was that they were said to be at " the same time and place ", and the time and place mentioned was at Midigama in the District of Matara on or about February 24, 1930. It was urged that if indictments of this nature were admitted it would be possible to charge a number of different individuals on the same indictment, though diffe