The Queen V. Thiagarajah Et Al.,

[ASSIZE COURT]

1955 Present : Gratiaen, J.

THE QUEEN v. THIAGARAJAH et al.

2ND NORTHERN CIRCUIT

S. C. 9-M. C. Mallakam, 1,408

Indictment-Charges contained therein-Must not be different from those inquired into by Magistrate-Scope of Attorney-General's power to re-open Magisterial inquiry-Criminal Procedure Code, ss. 156, 159, 160, 161, 162 {1), 163, 389, 390 (2), 391, 393.

Penal Code-Unlawful assembly--Sections, 138, 140.

An accused person can in no circumstances be committed for trial or tried upon indictment under Chapter 16 of the Criminal Procedure Code except upon the basis of the charges which had been read out to him under section 156 and to which he was later called upon to answer in terms of sections 159 and 160. The power of a Magistrate to commit under section 163 and the powers of the Attorney-General to direct a committal under section 391 are both determined by the scope of the particular charges which formed the subject matter of the Magisterial inquiry ; the only exception recognised by the Code is in respect of offences of which a man may lawfully be convicted upon a trial of the charges actually inquired into.

If the Attorney-General takes the view that an accused person ought to be committed for an offence other than that for which he had been specifically charged (or other than an offence for which he might lawfully have been convicted if properly committed) he may instruct the Magistrate under section 390 (2) to reopen the proceedings by formulating an amended charge under section 156, and thereafter to take all the steps prescribed by Chapter 16. It is not permissible to give a direction that the accused person should be committed for trial upon an amended charge after complying only with the requirements of sections 159, 160 and 161.

A person cannot be convicted of the offence of being a member of an unlawful assembly except in association with four others.

PRELIMINARY objection raised against the validity of the indictment in a trial before the Supreme Court.

M. Balasunderam, with S. Gurunathan, for the 1st accused.

A. Amirthalingam, for the 2nd accused.

N. T. D. Kanakaratne, Crown Counsel, for the Crown.

Cur. adv. vult.

59

August 1, 1955. GRATIAEN, J.-

A retired post-master named Kadiresu Sambandar (of the Vellala community) lived with his wife in the village of Urelu, where he cultivated a plantain garden adjoining the compound of his house. The adjoining allotment of land, similarly cultivated, belonged to Thevasi Kanavathy (a Palla man).

Mr. Sambandar also owned some cattle. At about 2 a.m., on 21st October, 1953, he woke up and went into his compound to tether a cow-calf. Shortly afterwards, his wife heard some suspicious noises and, as her husband had not yet returned, she and their immediate neighbours (the Thambidurais) went in search of him. A few moments later they heard the sound of a gun being fired, and of people running away. Mr. Sambandar was found lying, with bleeding injuries, near the entrance-to Thevasi Kanavathy's land. He was not in a fit condition to make a dying declaration before he died. He had sustained a blow on the head with a heavy, sharp cutting instrument and had also been shot in the stomach from a very close range. Each injury was necessarily fatal. It was also discovered that 135 plantain trees standing on Thevasi Kanavathy's land had been wantonly destroyed. Obviously more than one person had been concerned in the commission of these crimes.

The Police were unable for some time to discover any clue to the mystery. There had admittedly been caste ill-feeling in the locality, and Mrs. Sambandar suspected that her husband had been murdered by members of the Palla community. Thevasi Kanavathy, on the other hand, was equally convinced that Vellalas were responsible for the mischief committed on his land. The most likely theory, of course, is that a number of people entere

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