Mariyanayagam V. Basnayake

1944 Present: Wijeyewardene J.

MARIYANAYAGAM, Appellant, and BASNAYAKE, Respondent.

648-(Joint) M. C. Colombo, 1,084.

Charge-Charge of theft' and in the alternative of receiving stolen property and assisting- in disposing of stolen property-No charge framed under the latter offences-Fatal irregularity-Penal Code, ss. 366, 894, and 396.

Where the accused was charged with theft and, on the trial, date, the prosecution moved that the alternative charges under sections 394 and 396 of the Penal Code be added without any objection on the part of the accused's Counsel, and where the Magistrate proceeded to try the accused and convicted him under section 396,-

Held, that the failure to frame a charge vitiated the conviction.

Held, further, that the conviction under section 396 could not be justified under the provisions of section 182 of the Criminal Procedure Code.

The King v. Piyasena (44 N. L. R. 58) followed.

APPEAL from a conviction by the Joint Magistrate of Colombo.

N. Nadarajah, K.C. (with him H. Wanigatunqe), for the accused appellant.

G. P. A. Silva, C.C. for the Crown, respondent

Cur. adv. vult.

October 13, 1944. WIJEYEWARDE

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