Richard Costa V. A. S. P. (C. I. D.)Colombo

1948     Present : Nagalingam J.

RICHARD COSTA, Appellant, and A. S. P. (C.I.D.) COLOMBO,
Respondent

S. C. 590-M. C. Colombo, 40,335

Criminal Procedure Code, section 17-Conviction for distinct offences- Consecutive sentences-Provision in Penal Code, section 67-Conflict of provision in statutes-When section 17 of the Criminal Procedure Code applies.

The provisions of section 17 of the Criminal Procedure Code apply where the distinct offences of which the accused is found guilty are such that the acts which constitute one or more of those offences in combination do not constitute the other offence or offences. In the latter event the provisions of section 67 of the Penal Code would apply.

APPEAL from a judgment of the Magistrate, Colombo.

H. W. Jayewardene, for the accused appellant.

R. A. Kannangara, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

July 23, 1948. NAGALINGAM J.-

I see no reason to interfere with the conviction of the appellant in this case as the evidence irresistibly and conclusively establishes his guilt.

It has been contended that the sentence imposed by the learned Magistrate upon the appellant is an illegal one. The prisoner was convicted upon three separate charges, the first being that he was a member of an unlawful assembly the common object of which was to commit housebreaking by night and robbery, the second that he was armed with a deadly weapon or weapons while being a member of the said unlawful assembly and the third that he had in his possession without lawful excuse instruments of housebreaking and offensive weapons. In respect of each of these offences the appellant was sentenced to a term of 6 months' rigorous imprisonment; the sentences in regard to the first and second offences was to be consecutive while the sentence in regard to the third offence was to be concurrent with the sentence on the first. The contention advanced on behalf of the appellant is that the order directing that the sentences on the first and second charges should run consecutively is contrary to law.

The foundation for this contention is section 67 of the Penal Code which, inter alia, provides that where several acts of which one or more than one would by itself or themselves constitute when combined a different offence the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences. The second count which charges the appellant with having been armed with deadly weapons while being a member of an unlawful assembly, an offence punishable under section 141 of the Penal Code, is an offence constituted by a com­bination of the acts which constitute the offence of unlawful assembly, the subject of the first charge, and of the offence of being found having in his possession instruments of housebreaking, an offence punishable under section 449 of the Code, the subject of the third charge. The appellant, therefore, should not be punished with a more severe punishment than that which the Magistrate could have awarded for any one of such offences, namely a ter

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