[IN THE PRIVY COUNCIL]

1950  Present : Lord Porter, Lord Oaksey, Lord Radcliffe,
Sir John Beaumont and Sir Lionel Leach

THE KING v. DHARMASENA

Privy Council Appeal No. 34 of 1949

C. C. A. Appeals 10-11 of 1949

Privy Council-Criminal Procedure Code-Sections 167 (4), 180, 184-Joinder of charges and accused persons-Applicability of sections 180 and 184-Crucial time is time of accusation and not of conclusion of trial-Indictment-Significance of section 167 (4)-Conspiracy-Penal Code, section 1113B-Two accused-One alone cannot be convicted-Quashing of a conviction-Its effect-Court of Criminal Appeal Ordinance, No. S3 of 1938-Section 5 (2)-Proviso to section 5 (1)- Miscarriage of justice-Guiding rule-Privy Council-Principles for interference in a criminal case.

(i) In regard to joinder of charges and of accused persons as provided by sections 180 and 184 of the Criminal Procedure Code, the time at which it falls to be determined whether the condition that the offences alleged Lad been committed in the course of the same transaction has been fulfilled is the time when the accusation is made and not when the trial is concluded and the result known.

(ii) Where an indictment charged an accused person with committing murder in the course of a conspiracy, but referred to section 296 alone of the Penal Code and contained no reference to section 113B-

Held, that the accused could be convicted of murder even though there was no proof of conspiracy. Vide section 167 (4) of the Criminal Procedure Code.

(iii) A quashed conviction in section 5 (2) of the Court of Criminal Appeal Ordinance, No. 23 of 1938, does not acquit the appellant of the crime charged. It merely makes the previous conviction abortive. If it is intended to direct a judgment of acquittal to be entered it must be done in terms. If the step is not taken, a new trial may be ordered though the conviction has been quashed.

(iv) If two persons are accused of a criminal conspiracy and convicted and on appeal one is sent for retrial, the other should be sent at the same time for retrial also upon that charge so that both may be convicted or acquitted together.

(v) The proper test to determine whether there has been no substantial miscarriage of justice within the meaning of the proviso to section 5(1) of the Court of Criminal Appeal Ordinance is whether a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.

(vi) In an appeal to His Majesty in Council in a criminal case the appellant must establish that there is something which, in the particular case, deprives him of the substance of fair trial and the protection of the law, or which, in
general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future. Misdirection, as such, even irregularity, as such, will not suffice.

APPEAL, by special leave, from a judgment of the Court of Criminal Appeal. The judgment of the Court of Criminal Appeal is reported in (1949) 50 N.L.R. 505.

Granville Sharp, K. C. with Dingle Foot, for the accused appellant.

 Frank Gahan, with J. G. Le Quesne, for the Crown.

 In the application for special leave to appeal-

 A. B. Perera, for the petitioner.

J. G. Le Quesne, for the Crown.

JUNE 14, 1950. [Delivered by LORD PORTER]-

This is an appeal, by special leave, from a judgment of the Court of Criminal Appeal of Ceylon, dated the 16th March, 1949, dismissing the appellant's appeal against this conviction on the 3rd February, 1949, at the Sessions of the Supreme Court of Ceylon sitting at Colombo, on two charges, viz., conspiracy to commit murder and murder.

The appellant was charged and tried together with one Beatrice Maude de Silva Seneviratne upon an indictment dated the 18th June