Weerasinghe V. Mohamadu Ismail

1932 Present: Macdonell C.J., Garvin S.P.J., and Dalton J.

WEERASINGHE v. MOHAMADU ISMAIL.

533-563-P. C. Puttalam, 13,443.

Affray-Two opposing factions-Joint trial-Criminal Procedure Code, s. 184, illustration (d).

Members of two opposing factions charged with affray may be tried togeher.

CASE referred by Maartensz A.J. to a Full Bench on the question whether two opposing factions charged with affray may be tried together.

Hayley, K.C. (with him Nadarajah), for sixteenth to thirty-first accused, appellants.-The first to fifteenth accused formed members of one party, and the sixteenth to thirty-first accused were members of a rival party. It is submitted that members of opposing factions should not be tried together on a charge of affray (Velaiden v. Soysa 1[14 N. L. R. 140.]; Keegal v. Mohideen 2[5 C.W. R. 162.]; Police Officer v. Dineshamy 3[21 N. L. R. 127.]). In Abeywardene v. Fernando et al. 4[27 N. L. R. 97.] Bertram C.J. doubted the correctness of this principle, but held that he was bound by it. The Divisional Bench differentiated the earlier cases, but did not overrule them, in Hewavitarne v. Appuhamy.5[30 N. L. R. 33.]

The Criminal Procedure Code, section 178, is the governing section with regard to the joinder of accused. Every distinct offence requires a distinct charge and a distinct trial. When a number of persons engage in a fight, there are several distinct offences of affray committed.

[GARVIN S.P.J.-Does not the fact that there is concerted action make a difference ? ]

The element of concerted action and common intention has no place in the offence of affray, which connotes a breach of the peace being committed unexpectedly and without any previous intention (Gour's Penal Code, p. 817, 3rd ed.). As soon as we have concerted action, , the offence committed is that of rioting and not of affray. The joint trial of members of opposing factions is calculated to embarrass the accused in their defence. The law will not permit accused persons to be tried together in circumstances which indicate that they will thereby be prejudiced. Every accused might have a separate defence to the charge, and the Magistrate will find it difficult to distinguish the case of each accused.

[MACDONELL C.J.-But section 184 of the Criminal Procedure Code is merely discretionary.]

In any event it is submitted that general evidence alone is not sufficient to justify a conviction. Distinct acts of fighting must be held against each individual accused before he can be found guilty of affray (Russell on Crimes 406; Archbold (26th ed.), p. 1228).

Ameresekera and E. F. N. Gratiaen for first to fifteenth accused, appellants, adopted the above arguments, and further submitted that the accused had been committed for trial; no charge of rioting on the identical facts proved in this case. The offences of rioting and affray are mutually exclusive, and if an offience of rioting was disclosed by the evidence the Magistrate had no jurisdiction to try the accused summarily for affray (Criminal Procedure Code, section 193 (2) ). In the alternative, affray constitutes a minor offence and is subsidiary to the major offence of rioting. The Magistrate is not entitled to try the accused on the lesser offence and thereby confer on himself jurisdiction. The accused have now been found guilty of affray. If they are subsequently convicted of rioting, a double sentence would be imposed in respect of the same transaction. The practice of splitting up a serious offence and charging and sentencing accused persons separately in respect of subsidiary offences has been discouraged by this Court (vide Sub-Inspector of Police v. Evebinu Appu 1[31 N. L. R. 446.]). Counsel also referred to section 67 of the Penal Code.

[DALTON J.-This is not a question that has been referred to the Divisional Bench.]

But the matter can be dealt with in revision. J. E. M. Obeyesekere, C.C., for the re

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