[ASSIZE COURT]

1951 Present . Gratiaen J.

THE KING v. MICHAEL FERNANDO

S. C. 45-M. C. Kanadulla, 4,124 /4,125

Criminal procedure-Joinder of charges-Two offences of same kind committed within a. year-Separate non-summary proceedings and committals-Subsequent joinder of charges in the same indictment-Propriety of such procedure-Separate trials for counts in same indictment-When permissible-Indictments Act, 1915, of England, s. 5 (3)-Indictment-Improper committal on insufficient evidence-Amendment of indictment to supply vital gaps-Not permissible Criminal Procedure Code, ss. 172, 179.

Separate and distinct non-summary proceedings were conducted against the accused in respect of two offences of the same kind committed within twelve months and the accused was committed for trial in the Supreme Court in each case. Subsequently a single indictment was presented to the Supreme Court in the name of the Attorney-General charging the accused on two separate counts with the commission of the respective offences which had been the subject of the separate Magisterial inquiries.

Held that while it was not illegal for the Crown to join in the same indictment, under section 179 of the Criminal Procedure Code, charges which had formed the subject of separate proceedings terminating in separate committals, such a procedure was not proper and should not be permitted by the trial Judge where the intention of the Crown was to supplement at the trial the insufficient evidence relied on in one preliminary Magisterial investigation by the evidence recorded in a different investigation. In the circumstances, the accused should be separately tried on each count in the indictment.

Held further, that although the provisions of section 172 of the Criminal Procedure Code may be regarded as empowering the Court, in the exercise of its discretion, to allow an indictment to be amended by adding to the list of witnesses and documents called or produced in the lower Court, this discretion will not be exercised so as to enable fresh evidence to be led after indictment to supplement evidence which was in the first instance inadequate to justify commitment and upon which the accused should not have been put upon his trial. A proper commitment, justified by the evidence placed before the committing Magistrate, is a condition precedent to the operation of section 172 of the Criminal Procedure Code.

ORDER made in the course of a trial before the Supreme Court.

T. S. Fernando, Crown Counsel, with S. S. Wijesinha, Crown Counsel, for the Attorney-General.

V. Jonklaas, with G. B. Ellapola, for the accused.

January 25, 1951. GRATIAEN J.-

On March 21, 1950, the Kuliyapitiya Police instituted non-summary proceedings against the accused in the Magistrate's Court of Kanadulla (Case No. 4,124) on a charge of having on December 12 of the previous year used as genuine a forged or counterfeit five-rupee note, knowing or having reason to believe the same to be forged or counterfeit, an offence punishable under section'478 (b) of the Penal Code.

On the same day, namely, March 21, 1950, the Kuliyapitiya Police instituted separate non-summary proceedings in the same Court (Case No. 4,125) charging the accused with the commission of a similar offence.

on December 9, 1949. Had it occurred to the prosecuting authorities to apply the provisions of section 179 of the Criminal Procedure Code which enables a joinder of these two charges in a single proceeding in the Court below, all the difficulties which have ensued could have been avoided. Instead, the procedure, thoughtlessly selected, was to conducts a separate and distinct Magisterial inquiry into the alleged commission of each offence.

On April 20, 1950, the proceedings in case No. 4,124 were terminated before the learned Magistrate, Mr. G. Thomas, who committed the accused for trial in the Supreme Court on the first charge to which I have re